Double Jeopardy- Gone.

[Cicero]

Now, in our state, you can be retried for a serious offence if new and compelling evidence comes to light.

Goodbye double jeopardy.

Link.

[Sicks Ate]

I started to shout 'What about the 5th Amm......oh'. Realized you're in Australia.

Is it possible that legal challenges will overturn that legislation?

[Cicero]

Originally Posted by Sicks Ate

I started to shout 'What about the 5th Amm......oh'. Realized you're in Australia.

Is it possible that legal challenges will overturn that legislation?

It's possible of course. This is State Legislation and federal law will always over ride state law.

I think it is due to advances in science- obviously DNA- and hopefully will be used selectively. I haven't seen the legislation so I don't have any more details.

However, in the past decade or two there were a number of cases where the person who was let off was later tried for perjury- until a few courts started to get tired of that as well.

Australian law is rooted in UK law, and case law emanating from that. However, statute law can override case law.

IANAL and I think we do have some Australian lawyers around who can give a far more correct version than I can.

[JRDelirious]

Y'know, from the article this is a trend across the Australian states and it would not surprise me if people were trying everywhere, even to weasel it into the law in the USA, constitution or not. I suppose it comes partly from the inevitable tension between the notion of procedural justice on which the system has been built until now and that of, how the hell do I call it, conceptual? justice, the gut feeling that "it's not right they should get away with it".

And I see they latch on to progress in forensics, sort of along the lines of "if new evidence can be used to exonerate, it should be usable to convict" though they don't explicitly say so. Are conviction and acquittal symmetrical things?

[CalMeacham]

What?


Do you go straight to Final Jeopardy, then?

[Cicero]

Originally Posted by CalMeacham

What?


Do you go straight to Final Jeopardy, then?

Only if the price is right.

[Sicks Ate]

If it's based on new DNA processing abilities, perhaps they should start elsewhere: Review the cases of any person who is currently serving a life sentence, where there is DNA comparison available, if it wasn't done during their initial trial.

Verify that you already have the right people in jail, then go after ones that you couldn't get a conviction on the first time.

[Xema]

Originally Posted by Cicero

Goodbye double jeopardy.

Shouldn't this be "Hello" ?

[Leaffan]

Originally Posted by Cicero

Now, in our state, you can be retried for a serious offence if new and compelling evidence comes to light.

Is this a problem?

[Cicero]

Originally Posted by Sicks Ate

If it's based on new DNA processing abilities, perhaps they should start elsewhere: Review the cases of any person who is currently serving a life sentence, where there is DNA comparison available, if it wasn't done during their initial trial.

Verify that you already have the right people in jail, then go after ones that you couldn't get a conviction on the first time.

Who is "they"? The police investigate and try and find a guilty party- I doubt they see it as their responsibility to ensure every one in prison is proven guilty a second time.

[Cicero]

Originally Posted by Leaffan

Is this a problem?

Not for me-I am quite happy to see it. There are a number of things that are historically based I would like to see examined in the light of our current society.

[sachertorte]

Originally Posted by Xema

Shouldn't this be "Hello" ?

I was going to post the same thing.

[Cicero]

Originally Posted by sachertorte

I was going to post the same thing.

I see your point- maybe I should have said "Goodbye Double Jeopardy Rule"

[74westy]

Originally Posted by Leaffan

Is this a problem?

Damn Canadians.

Actually, I argued in high school that Canada should have a double jeopardy rule like the US has because of the way Henry Morgentaler was tried and acquitted three times on the same charge.

Despite Morgantaler's tribulations, I no longer think that double jeopardy is a bad thing.

[BigT]

Originally Posted by Leaffan

Is this a problem?

Um, yeah. It means that a corrupt court can now repeatedly retry you until it gets the results it wants. (Remember, they are the ones who decide if the evidence is compelling.) That's the whole point of the law. It's why we have a trial by jury--it's a check on the government's power.

This is stuff you learn in junior high civics.

Originally Posted by Cicero

Who is "they"? The police investigate and try and find a guilty party- I doubt they see it as their responsibility to ensure every one in prison is proven guilty a second time.

What are they doing then going out and finding evidence that someone did something after the court system has said they aren't guilty? Clearly they think it's their responsibility to actually catch the guilty, regardless of what the court says. If they can't trust the court to say who is innocent, why should they trust it to say who is guilty?

[Cicero]

Originally Posted by BigT

Um, yeah. It means that a corrupt court can now repeatedly retry you until it gets the results it wants. (Remember, they are the ones who decide if the evidence is compelling.) That's the whole point of the law. It's why we have a trial by jury--it's a check on the government's power.

This is stuff you learn in junior high civics.



What are they doing then going out and finding evidence that someone did something after the court system has said they aren't guilty? Clearly they think it's their responsibility to actually catch the guilty, regardless of what the court says. If they can't trust the court to say who is innocent, why should they trust it to say who is guilty?

The stuff you learn in junior high school would also teach you that a Court- corrupt or not- does not start prosecution proceedings.

We do not have a trial by jury as a check on the governments power. Try reading the history of common law.

As for your last paragraph, is it for real? If a person has been through the court system and been found not guilty, then the police actually have an unsolved case. That is why they go out and search for evidence after a not guilty verdict. There is also the possibility that they already have the evidence but at the time it was collected the technology did not exist to use it .

[John DiFool]

Originally Posted by Cicero

Only if the price is right.

And you can make a deal.

[Gorsnak]

Originally Posted by Xema

Shouldn't this be "Hello" ?

I don't know why you say, "Goodbye." I say, "Hello."

[The Man With The Golden Gun]

Judge: Sir, you are hereby charged with two counts of armed robbery and one count of murder. How do you plead?
Defendant: Not guilty, your honor.
Judge: I hereby sentence you to a year in prison for contempt of court.
Defense lawyer: Objection, your honor!
Judge: Let the record show that under our new law, all pleas in an Australia court of law must be given in the form of a question.
Defense lawyer: Shuck it, Trebeck.

[Little Nemo]

A prohibition against double jeopardy is an important protection. There's always going to be possible new evidence that the government can use so without a prohibition against double jeopardy, the government can target an individual and simply keep prosecuting him over and over again in the hope that it will eventually find a jury that convicts or at least keep the person going through the ordeal of trials for the rest of his life. The prohibition against double jeopardy sets a limit on this - it says the government gets one shot at you so it has to present its best evidence at the first and only trial.

[Northern Piper]

Originally Posted by 74westy

Damn Canadians.

Actually, I argued in high school that Canada should have a double jeopardy rule like the US has because of the way Henry Morgentaler was tried and acquitted three times on the same charge.

Despite Morgantaler's tribulations, I no longer think that double jeopardy is a bad thing.

Canada does have a double jeopardy rule, similar to that of the US. However, in Morgentaler's case, he was tried and ultimately convicted in Quebec on one charge of performing an illegal abortion. He was later tried and acquitted in Quebec on another charge of performing another illegal abortion, some years later, with a different woman - in other words, a new alleged offence. He was later tried and acquitted of performing another illegal abortion some years later in Ontario, with a different woman, another separate alleged offence. In other words, three separate sets of facts, two different provinces, three separate acts on his part, and three different alleged offences.

In neither the US nor in Canada would the second and third cases be considered double jeopardy.

[aceplace57]

Allowing someone to potentially be tried over and over again seem very cruel. Imagine the stress and emotional toll of a murder trial. You're acquitted, financially ruined, no job, and your reputation in shreds. Then six years later, just when life is returning to normal it starts back all over again with new evidence and a new trial. That's beyond horrible.

Double jeopardy forces prosecutors to proceed cautiously and slowly. It's not unusual for them to wait a year or more to press charges if a case is shaky. They keep digging for evidence until its strong enough for trial.

I strongly support double jeopardy. Prosecutors only deserve that one shot at proving a case, unless it ends in a mistrial or hung jury.

[aceplace57]

It's worth pointing out that Double Jeopardy protection in the U.S. has been under attack for decades.

There's been several cases where people acquitted in State courts have been retried in Federal. The cops in the Rodney King case are the best example. Several went to Federal prison after being acquitted in their state trial.

Also, another legal trick is to retry someone in a Civil Trial. OJ is the best example there. The old theory was acquittal in a criminal case meant you couldn't be found guilty in a civil case for murdering someone. But they rewrote the case law for OJ.

[Little Nemo]

Originally Posted by aceplace57

Also, another legal trick is to retry someone in a Civil Trial. OJ is the best example there. The old theory was acquittal in a criminal case meant you couldn't be found guilty in a civil case for murdering someone. But they rewrote the case law for OJ.

No, having been found innocent in a criminal trial is part of a defense at a civil trial but it's not considered proof of innocence. The standard of proof is lower at a civil trial so a person could be found innocent at a criminal trial and guilty at a civil trial.

And it's not a legal trick because civil trials are between individuals not the government.

[KneadToKnow]

Originally Posted by Little Nemo

No, having been found innocent in a criminal trial is part of a defense at a civil trial but it's not considered proof of innocence. The standard of proof is lower at a civil trial so a person could be found innocent at a criminal trial and guilty at a civil trial.

And it's not a legal trick because civil trials are between individuals not the government.

Is there any such thing as being found "innocent"? I thought it was "not guilty."

[Little Nemo]

Originally Posted by KneadToKnow

Is there any such thing as being found "innocent"? I thought it was "not guilty."

Let's not get hung up on technicalities.

[aceplace57]

I've only read about a few murder cases in civil court.

There was one in Louisiana where a frightened homeowner shot a Japanese exchange student on Halloween. The teens English wasn't very good and he didn't understand the homeowners warnings. The homeowner was acquitted in the criminal case. He freely admitted the shooting in self defense. He lost in the civil suit and lost a pile of money.

OJ was different because he always claimed that he had nothing to do with the murders. He was acquitted in the criminal case. The Civil Case was literally a retrial of the facts and they had the huge advantage of a lower burden of proof. Plus OJ was broke and couldn't afford to hire his legal team from the criminal case.

No one cried any tears over OJ. But it was a ugly use of Double Jeopardy. I don't like the guy, but it bothers me seeing the law used like that.

[Northern Piper]

But you seem to think it was something new - it wasn't. The Constitution's restriction on double jeopardy only applies in criminal matters, not civil, and it only restricts governments, not private citizens like the plaintiffs. The OJ civil case may be the best known case of a subsequent civil action, but it wasn't re-writing the law of double jeopardy in any way.

[mhendo]

I'm torn on this issue.

I understand the principles behind the prohibition on retrying someone for the same crime, and i recognize that it comes from a very real concern about arbitrary and capricious government power. The burden of proof in criminal proceedings should be high, and there should also be mechanisms to prevent the state from taking multiple bites at the cherry based on limited and unconvincing new evidence.

However, i've also never been completely convinced, as a matter of principle, that the prohibition on double jeopardy should be absolute. Of course, some might argue that any weakening of the rules against double jeopardy would constitute a dangerously slippery slope, but i believe that there are mechanisms that could be placed within the legal system in order to ensure that certain standards needed to be met in order to clear the hurdle.

I feel somewhat uncomfortable saying that, because i'm not a gung-ho, strap-em-down, law and order fanatic, and i recognize that the American criminal justice system has plenty of problems already without adding another way for corrupt of self-seeking DAs to pursue possibly innocent people. Still the almost absolute nature of the prohibition on double jeopardy doesn't sit completely comfortably with me either.

It's a tough issue.

[grude]

I am perhaps the most anti-law and order guy I know, I think all juries should be instructed by the judge that they have the right to nullify for example.

BUT I don't know that I would have a problem with the following scenario:

Guy put on trial for rape and murder of woman, he is acquitted but DNA evidence did not exist at the time. Later a semen sample collected from the victim is tested and it is a match with the accused, in a case like that I don't know that I would oppose a new trial.

As long as there are some limits(only the most serious of offenses, perhaps a time limit for new evidence so they aren't going after 80 year olds).

[Little Nemo]

Originally Posted by aceplace57

OJ was different because he always claimed that he had nothing to do with the murders. He was acquitted in the criminal case. The Civil Case was literally a retrial of the facts and they had the huge advantage of a lower burden of proof. Plus OJ was broke and couldn't afford to hire his legal team from the criminal case.

No one cried any tears over OJ. But it was a ugly use of Double Jeopardy. I don't like the guy, but it bothers me seeing the law used like that.

But what's your proposed alternative? Are you suggesting that Simpson should be granted a blanket immunity from being sued by anyone?

[aceplace57]

No, immunity wouldn't work.

I just never heard of anyone getting sued after being exonerated in a criminal trial. OJ was the first I can recall. Robert Blake got the same deal. Acquitted and then hammered with a civil judgement. I guess this has been happening all along and I just never heard about it.

Usually it works the other way. If you're found guilty in a criminal matter, then it's almost automatic that any injured parties will sue your ass off in a civil case.

[Little Nemo]

If there was a double jeopardy rule over criminal and civil cases, I could see it being manipulated.

A corporation that was dumping chemicals, for example, might seek out criminal charges. If, due to the higher standard of proof, they were found not guilty of the criminal charges they would then be immune from any liability lawsuits. Worst case scenario, they lose the criminal trial with a fine that's less than the damages they would have paid in a civil trial.

[jtgain]

Originally Posted by Little Nemo

If there was a double jeopardy rule over criminal and civil cases, I could see it being manipulated.

A corporation that was dumping chemicals, for example, might seek out criminal charges. If, due to the higher standard of proof, they were found not guilty of the criminal charges they would then be immune from any liability lawsuits. Worst case scenario, they lose the criminal trial with a fine that's less than the damages they would have paid in a civil trial.

Agreed. Also, criminal and civil law have different objectives. The first is to punish the crime committed against society in general. The second is to provide compensation to the victims of your activity.

For example, say I run you over with my car causing you $30k in medical expenses. The jury convicts me of aggravated battery and I do a year in jail and pay a $10k fine. That's great and all, but how does it pay your medical bills? You need that civil suit to get paid.

But say a jury found me not guilty on the aggravated battery charge. Not guilty is not a statement of actual innocence. It just says that the state didn't prove their case beyond a reasonable doubt. That is fine for a criminal standard, but in a case between individual parties, we use the preponderance of the evidence standard.

So in a situation where the evidence shows that it is more likely than not that I ran you over with the car, but not enough to be beyond a reasonable doubt, it is appropriate that I have to pay you damages, but not go to jail.

[mhendo]

Originally Posted by aceplace57

No, immunity wouldn't work.

I just never heard of anyone getting sued after being exonerated in a criminal trial. OJ was the first I can recall. Robert Blake got the same deal. Acquitted and then hammered with a civil judgement. I guess this has been happening all along and I just never heard about it.

Usually it works the other way. If you're found guilty in a criminal matter, then it's almost automatic that any injured parties will sue your ass off in a civil case.

Well, sort of. People like OJ and Robert Blake were somewhat unusual in that they had money.

Your more typical murderer may not have a whole lot of assets to pursue, and insurance policies aren't likely to cover homicide. Not much point in suing someone who is essentially judgment-proof.

[Little Nemo]

Originally Posted by mhendo

Well, sort of. People like OJ and Robert Blake were somewhat unusual in that they had money.

Your more typical murderer may not have a whole lot of assets to pursue, and insurance policies aren't likely to cover homicide. Not much point in suing someone who is essentially judgment-proof.

But by the same token, most people aren't going to have a bunch of money to spend defending against a liability judgment. So it's actually not uncommon for somebody to be convicted of murder and have their victim's family file a civil lawsuit against them. If there's no legal battle involved it's mostly just some paperwork and it's probably only going to cost a few hundred dollars. Some people find it worth it to know that if the guy who killed their family member ever does make any money, he won't be able to keep it.

Charles Manson is an example. Guns N' Roses, Marilyn Manson, Henry Rollins, and White Zombie have recorded songs he wrote. But Manson doesn't get the royalties. They go to the Frykowski family, which donates them to a charity.

[Northern Piper]

Originally Posted by jtgain

But say a jury found me not guilty on the aggravated battery charge. Not guilty is not a statement of actual innocence. It just says that the state didn't prove their case beyond a reasonable doubt. That is fine for a criminal standard, but in a case between individual parties, we use the preponderance of the evidence standard.

This is a good example, particularly if you consider that it's the state that is responsible for the prosecution. What if the state screws up? Maybe the cop didn't mirandize the driver, so his statement that he was driving gets tossed and that's the reason for the acquittal. Or maybe the prosecutor does a particularly lousy job in running the case (e.g. forgets to call a key witness).

You're the victim of an accident and need medical bills paid. Maybe you're so badly injured that you lose your job and will have trouble working again. Should you be bound by the mistakes of the state? if the state does a bad job, should that bar you from suing to have your injuries compensated?

The answer is no, you're not bound by the mistakes of the state - they are two separate types of proceedings, and the fact that the state doesn't get a conviction doesn't bar you from trying to recover monetary damages for your injuries.

[Cicero]

Apologies, haven't revisited for about a day. However there are some different ideas here to what I am aware of.

Firstly, the Government prosecuting. The Government does not prosecute (in any jurisdiction I am aware of). It is an arm of the Government- such as Attorney General or a Police Force who swear out a complaint. If it is a high profile case the Govt may indeed instruct its agencies to keep pursuing the persons (CHristopher Skase).

Here, at least, before I could mount a prosecution, the Brief would have to be reviewed by the Government Solicitor of the Director of Public Prosecutions. That was a check. I could not relentlessly pursue an individual because i thought they were guilty- it is checks and balances.

And Little Nemo, I notice that is post #26 above you say to not get hung up on technicalities. However, it is a vast difference to be found not guilty, rather than being found innocent. In Scottish Law there is a verdict of "Not Proven".

Being found not guilty has never equated to being found innocent.

[74westy]

Originally Posted by Northern Piper

Canada does have a double jeopardy rule, similar to that of the US. However, in Morgentaler's case, he was tried and ultimately convicted in Quebec on one charge of performing an illegal abortion. He was later tried and acquitted in Quebec on another charge of performing another illegal abortion, some years later, with a different woman - in other words, a new alleged offence. He was later tried and acquitted of performing another illegal abortion some years later in Ontario, with a different woman, another separate alleged offence. In other words, three separate sets of facts, two different provinces, three separate acts on his part, and three different alleged offences.

In neither the US nor in Canada would the second and third cases be considered double jeopardy.

Thanks. Now I have no idea what I was arguing 30 years ago. I did correctly remember that in Canada the crown can appeal an acquittal.

[Northern Piper]

Originally Posted by Cicero

Firstly, the Government prosecuting. The Government does not prosecute (in any jurisdiction I am aware of). It is an arm of the Government- such as Attorney General or a Police Force who swear out a complaint. If it is a high profile case the Govt may indeed instruct its agencies to keep pursuing the persons (CHristopher Skase).

I think we're running into a vocabulary difference. I've noticed that US-speak tends to use "the government" broadly, to include all aspects of government, including the public service, while in Commonwealth-speak, "the government" is used more narrowly, to mean the government of the day, the elected politicians. In my vocabulary, I wouldn't use "government" to refer to the prosecutors, who are non-partisan professional public servants, not elected officials, but I've seen posters here use "the government" to refer to the prosecutors.

[KneadToKnow]

And if you're referring to cheese, remember: it's gummint.