Suppose I committed a crime in a jurisdiction that allows private prosecution. I could now clandestinely collaborate with an accomplice who brings a criminal case against me via private prosecution and intentionally conducts this prosecution in a dilettante manner - omitting incriminating evidence or handling it insecurely, examining witnesses poorly, etc. I’d be likely to be acquitted in such a trial. Could I then raise this acquittal as a double jeopardy defence in any subsequent attempt to prosecute me more professionally and impartially?
I’ve never heard of a private prosecution. Do you mean a civil trial versus a criminal trial? Where do you live?
What is a “private prosecution?”
I know this happened in the UK (or I probably should say England & Wales, because I know nothing about Scotland & NI law).
Its where a private party, usually the alleged victim or an association takes on the task or prosecution when the public prosecutor is unwilling to undertake a prosecution.
There was a famous case in the 1990s where an “association of prostitutes” (their own term) bought a successful private prosecution against a rapist because the Crown Prosecution Service decline to pursue the case. Purportedly for lack of evidence, but probably a combination of not believing sec workers could make credible witnesses and the offensive belief of many that raping a sex worker is at most a property crime of sorts. Hard to believe this was only 30 years ago.
The most famous case is of course Oscar Wilde’s attempt at a private prosecution that backfired spectacularly.
I don’t think this is possible in any US state, at least I have never heard of it.
Certainly allowable in England and Wales:
One famous example:
(Oscar Wilde sued for libel, not a criminal prosecution, I thought)
My understanding, as an ordinary citizen, is that the double jeopardy rule can be set aside if there is “compelling new evidence”, and I suppose an obviously completely cackhanded private prosecution might leave options for such evidence to be found and for the CPS to take it over.
And if there was evidence of collusion in a deliberately incompetent prosecution, wouldn’t that be an “attempt to pervert the course of justice” or at least contempt of court?
I live in Germany, which has private prosecution on the statute book but it is extremely rare in practice. Then again, double jeopardy is less strict in Germany than in the US, and new prosecution in the light of new evidence after an acquittal is more easily available.
It was for criminal libel, not civil.
You’d have to show that the private prosecution was never intended to succeed. In American law something like a corrupted judge, a bribed or coerced juror or a prosecutor who was shown to be deliberately (not incompetently) ineffective.
Sure, but (1) you’d need evidence for that, and (2) the penalty for that might be less than the penalty for the original crime.
Sorry to follow up my own post, but it seems that Debbie jeopardy is a lot less strict in some countries than in the US.
Particularly since a change in the laws of England & Wales in 2003.
[distinctly non FQ aside] You’re getting old when 21 years ago is “recent”
There are some private prosecutions in the US. Rhode Island allows them for misdemeanors. I think in all states where this is currently allowed the state still has control and I don’t think any state would let them continue privately in the matter of a serious felony.
I’m not sure about the history of such things here in the US. Going back to the 1800s there was a thing called the Coal and Iron Police, a private police force in Pennsylvania. They went after union organizing and involved in the prosecution of the Molly Maguires there. IIRC the state allowed a private prosecutor paid for by the coal mining industry to conduct the prosecution. Don’t know if state laws allowed a private prosecutor to conduct a grand jury back then or ever.
We have private prosecutions, technically, in Canada, but they rarely go anywhere.
The Crown prosecution service has the discretion to take over a private prosecution. When that happens, they normally will stay it as not a proper use of the prosecution function.
In rare cases, the Crown office might take over the prosecution if they conclude it actually has merit. That happened in the case of R v Zundel, who was charged in a private prosecution for false news by spreading claims that the Holocaust never happened. He was convicted at trial, but the Supreme Court held that the false news offence was unconstitutional and he was then acquitted.
In light of that pattern, I doubt that things would ever proceed as outlined in the OP, and the double jeopardy issue wouldn’t arise.
I assumed this thread was inspired by:
Which I don’t bring up for extended discussion, only as an example of a current (and high profile) effort at private prosecution in a US state. As to whether double jeapordy should attach… no idea, but my semi-informed guess would be… probably? Seeing as the state must still be substantially involved in providing the laws, the forum, the judge, and the jury.
It is possible in some US states although it looks like Alabama is the only one with something resembling actual private prosecution.
I was thinking more that some “compelling evidence” was not used by the private prosecutor, which could later be taken up by the CPS, regardless of whether it had been deliberately or inadvertently not used.
But IANAL, so…
I am not a lawyer, but I believe in all states where a private party can initiate a prosecution it is taken over by public prosecutors at some point.
In England the prosecution remains private (an very costly) through conviction or acquittal.
I’m currently watching John Thaw in Kavanaugh QC. Private prosecution has come up twice so far. Oddly, in the second one the Chief Clerk of his office tried to dissuade Kavanaugh from taking it on since there have been so few and rarely succeed. Despite the first one …
This was the first time I’ve heard of such a thing. So it was kind of weird that right away that Haitian immigrant case was in the news.
Note that in the US not guilty verdicts can be overturned and retried if the verdict was considered tainted. Generally this means there was jury tampering on behalf of the accused. A not guilty verdict against John Gotti was overturned for this reason.
If the “prosecutor” was actually in collusion with the accused this might also fall under the category of a tainted verdict. The big, big issue is proving it.
I thought that was how the double jeopardy rule had always worked.
In the United States: If you’re convicted of a crime and there’s compelling new evidence of your innocence, you can (sometimes) get a new trial. But if you’re acquitted and there’s compelling new evidence of your guilt, you can’t be tried again. You can even confess in a national magazine and not be tried again.
The only was double jeopardy can be overridden is if you were never really in “jeopardy” to begin with, typically because you had interfered with the judicial process via jury tampering or bribing judges or the like. The most notorious case I know of along these lines was Harry Aleman.