Double jeopardy
The double jeopardy protection in criminal prosecutions bars only an identical prosecution for the same offence except when the defendant is a servicemember as the courts have ruled that the military courts are a separate sovereign, therefore servicemembers can be held in two separate trials for exactly the same charges; however, a different offence may be charged on identical evidence at a second trial.Res judicata protection is stronger – it precludes any causes of action or claims that arise from a previously litigated subject matter.[3] If a double jeopardy issue is raised, evidence will be placed before the court, which will typically rule as a preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding.The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise, under Article 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country."Member states may, however, implement legislation which allows the reopening of a case if new evidence is found or if there was a fundamental defect in the previous proceedings:[11] The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.In many European countries, the prosecution may appeal an acquittal to a higher court.The European Convention on Human Rights permits this by using the phrase "finally acquitted or convicted" as the trigger for prohibiting subsequent prosecution.Public outcry following the overturn of his conviction (for perjury) by the High Court has led to widespread calls for reform of the law along the lines of the England and Wales legislation.During a Council of Australian Governments (COAG) meeting of 2007, model legislation to rework double jeopardy laws was drafted,[13] but there was no formal agreement for each state to introduce it.[14] On 17 October 2006, the New South Wales Parliament passed legislation abolishing the rule against double jeopardy in cases where: On 30 July 2008, South Australia also introduced legislation to scrap parts of its double jeopardy law, legalising retrials for serious offences with "fresh and compelling" evidence, or if the acquittal was tainted.For an appeal from an acquittal to be successful, the Supreme Court of Canada requires the Crown to show that an error in law was made during the trial and that it contributed to the verdict.For instance, in his book My Life in Crime and Other Academic Adventures, Martin Friedland contends that the rule should be changed so that a retrial is granted only when the error is shown to be responsible for the verdict, not just a factor.Another notable use of the system occurred in the case of child murderer Guy Turcotte, the Quebec Court of Appeal overturned the initial verdict of not criminally responsible by reason of mental disorder and ordered a second trial after it found that the judge had erroneously instructed the jury.The Basic Law (Grundgesetz) for the Federal Republic of Germany protects against double jeopardy if a final verdict is pronounced.Nobody shall be punished multiple times for the same crime on the basis of general criminal law.However, each trial party can appeal against a verdict in the first instance.In this case, the trial starts again in the second instance, the court of appeal (Berufungsgericht), which reconsiders the facts and reasons and delivers a final judgement.A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the Constitution of India, which states "No person shall be prosecuted and punished for the same offence more than once".The defence counsel argued that the crimes were actually one offence of habitual larceny and that charging them as separate counts was double jeopardy.On 9 April 2013, the Dutch senate voted 36 "yes" versus 35 "no" in favour of a new law that allows the prosecutor to re-try a person who was found not guilty in court.It opined that the Law Commission had been unduly cautious by limiting the scope to murder and that "the exceptions should [...] extend to other grave offences punishable with life and/or long terms of imprisonment as Parliament might specify.[45][46][43][42] [47] Both Jack Straw (then Home Secretary) and William Hague (then Leader of the Opposition) favoured the measures suggested by the Auld Report.[53] Pressure by Ann Ming, the mother of 1989 murder victim Julie Hogg—whose killer, Billy Dunlop, was initially acquitted and subsequently confessed—also contributed to the demand for legal change.[57] In December 2018, convicted paedophile Russell Bishop was also retried and found guilty by a jury for the Babes in the Wood murders of two 9-year-old girls, Nicola Fellows and Karen Hadaway, on 9 October 1986.[60] The force had wanted to re-interview a suspect in the unsolved case of the murders of John Greenwood and Gary Miller who had been acquitted of the crime in 1981, but were not permitted to do so.[90] The doctrine is solidly entrenched in the law, but there has been a traditional reluctance in the federal executive branch to gratuitously wield the power it grants, due to public opinion being generally hostile to such action.[96] Blockburger is the default rule, unless the governing statute legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates,[97][98] as can conspiracy.However, in the mid-1980s Georgia antique dealer James Arthur Williams was tried a record four times for murder over the shooting of Danny Hansford, and after three mistrials was finally acquitted on the grounds of self-defence.[105] The case is recounted in the book Midnight in the Garden of Good and Evil,[106] which was adapted into a film directed by Clint Eastwood (the movie combines the four trials into one).