The Concept of Double Jeopardy: Background
The double jeopardy clause in the Fifth Amendment to the U. S. Constitution prohibits the government from prosecuting individuals more than one time for a single offense and from imposing more than one punishment for a single offense. It provides that "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." Most state constitutions also guarantee this right to defendants appearing in state court. Even in states that do not expressly guarantee this right in their laws, the protection against double jeopardy must still be afforded to criminal defendants because the Fifth Amendment's Double Jeopardy Clause has been made applicable to state proceedings via the doctrine of incorporation.
Under this doctrine, the Supreme Court has ruled in a series of cases that the Due Process and Equal Protection Clauses of the Fourteenth Amendment guarantee to the citizens of every state the right to exercise certain fundamental liberties. These liberties include, but are not limited to, every liberty set forth in the Bill of Rights, except the Second Amendment right to bear arms, the Third Amendment right against quartering soldiers, the Seventh Amendment right to trial by jury in civil cases, and the Fifth Amendment right to indictment by grand jury.
The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400-1066 A.D.) through the canon law and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions.
In England the protection against double jeopardy was considered a universal maxim of the common law and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). However, the English double jeopardy doctrine was extremely narrow. It afforded protection only to defendants accused of capital felonies and applied only after conviction or acquittal. It did not apply to cases dismissed prior to final judgment and was not immune to flagrant abuse by the British Crown.
Page 1 of 2
Next Page
