Double jeopardy law is the trying of a person for the second time after being cleared of a crime. It is trying a person in the law courts for the same type of crime twice. This is illegal in the law of the United States. The fifth amendment of the United States constitution prohibits double jeopardy. This paper seeks to prove the importance of the principles of protection against double jeopardy.
Courts and scholars in the recent years have considered it the primary right for a person to be protected against double jeopardy. The United States Supreme Court states that the basic nature of the assurance against double jeopardy can barely be put into doubt (Rudstein2). Years earlier, Felix Frankfurter the United States Supreme Court judge stated that protection against double jeopardy is a fundamental requirement for any criminal procedure that is civilized.
The exact origin of assurance against double jeopardy is not clear. In the early twentieth century, the American Law Court assumed that the principle seems to have been always integrated in the law of England which is also common in the Roman law (Rudstein 2). Without doubt, it was in each system of jurisprudence. Instead of the laws that guide against double jeopardy to have a precise origin, they were always in existence.
Rudesten supports the argument that there is no doubt that guard against double jeopardy has a protracted history (3). The ancient Jewish law contains several principals of the law of double jeopardy. A compilation of the ancient teaching of Hebrew states that acquittal should not be overturned (Rudstein 3). The book of Deuteronomy in the Old Testament states that when an argument between two individuals is brought to court, the person found guilty deserves to be beaten. This is acceptable when the person is flogged in front of a judge and should be according to the measure of his crime (Rudstein 4).
Rudstein found the English common law by mid thirteen century familiarizing with part of the principles of fortification against double jeopardy (5). In the next years, the principles against double jeopardy gained stability in the English common law. Scholars have come up with three theories that explain the origin of double jeopardy and its introduction to the English common law (Rudstein 5). One theory states that the principle came through the canon law that was introduced by England or through the Roman law which sunk its roots into treatise judges and writers. The earliest judges in England were the clergy who had studied Roman law (Rudstein 6). When it came to passing judgment they referred to the Roman law they had studied.
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The second theory explains that in the twelfth century, there was a struggle for power between King Henry II and the church. This struggle for power led to the formation of the principle of protection against double jeopardy (Chambliss 21). This adoption of the principle faced much opposition. There were constant wrangles between King Henry II and the church.
Chambliss evaluated the third theory which explains the introduction of protection against double jeopardy. It explains that it evolved from the criminal course of action in Anglo-Saxon as a handy and an apparent procedural postulation by the courts. All these theories try to explain the origin of the principle of protection against double jeopardy (Chambliss 34). There are still no factual materials that lead to how the law found its place in different constitutions worldwide.
The law guides against three discrete abuses. They are prosecution for the second time after being acquitted, prosecution for the second time after conviction and punishments that are multiple for the same crime (Rudstein 34). In multiple criminal prosecutions, the constitution permits punishments that are separate. However, this is if the punishment is not on the basis of the similar offenses. In 1932, the United States Supreme Court stated that punishment for two offences that are statutory. It arises out of the similar criminal act or does not go against the Double Jeopardy Clause.
Rudstein evaluated the rule that is against double jeopardy stating that nobody should be punished twice or tried for the same crime (65). This rule was brought about to protect citizens from suffering. It also ensures that the state does not continue prosecuting persons for the same crime until convicted (Rudstein 67). Research shows that this rule has been in existence since the time of the ancient Greeks. Today this principal of jeopardy law has come under attack from the media. Politicians who are known to be tough on the crimes, dare to go against the principals of the criminal laws. Therefore, they attack the liberty of the citizens as a whole.
Some governments have eroded the principal of Jeopardy law. For example, the government of the United Kingdom has done this by trying people who have been acquitted. This leads to the rise of new evidence that is persuasive (Pillai 89). Certain circumstance led to the abolishing of the rule against Double Jeopardy. These are just but a few countries which have eroded, and abolished the rule that governs double jeopardy. When close investigations are put on these countries, it will be found out that their governments tend to be dictatorial.
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Pillai determined that the trying of a criminal is a process that is accusatorial (43). This is whereby the state is given powers against a person who is accused of a criminal offense. Many of the developed rules that have been used for the conduct of trials reflect two apparent proportions (Pillai 45). These are that the powers of the state as the prosecutor are superior to those of the person being accused. This also implies that the penalty of conviction is extreme.
Countless laws under the name double jeopardy turn out to be the rules that oppress people. Without considerations, the power of the executive to prosecute can be used as a tool of subjugation (Pillai 45). Any system of justice needs to consider finality as an important factor. This means that in every ruling carried out in a law court the person should be prosecuted until found guilty.
In the constitution of the United States, the Fifth Amendment protects defendants from facing the prosecution twice for the same crime (Pillai 65). The clause in the United States’ Fifth Amendment also defends persons suspected to have committed crimes against double punishment for a sole crime or offence. The law is found to have exceptions and a criminal defense lawyer can explain why sometimes this law may not be applied.
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