I think the point is that if Joe Blow can launch a prosecution, and have that prosecution count as the single jeopardy, that sucks. If the private prosecution does not preclude a future public prosecution, then everything is fine (with me, anyway.)
From the above descriptions of the case, it appears to me the case proceeded thus:
[ul][li]Crime was committed.[]Crown counselors decide insufficient evidence to prosecute.[]Someone else decides to prosecute regardless of lack of evidence.[]Said prosecution fails.[]New evidence appears (confession, whatever.)Crown is barred from prosecuting because of the idiot who prosecuted previously.[/ul][/li]That’s what is just as bad (in the opposite direction) as double jeopardy, if I’m not mistaken in my assumptions.
Imagine a cottage industry of lawyers willing (for the standard fee) to bring hasty private prosecutions while the case is not yet firm enough, getting ‘not guilty’ verdicts just before the murder weapon is found, for example. Even if only family of the victim can prosecute, I still see things like intra-family murders being messy.
With private prosecutions, the Crown can take over the case and then drop it if it is in the interests of Justice (or of the Government- see post above). This often happens.
The Lawrence case was just too high profile for this to be allowed to happen and so it was allowed to continue IIRC.
It is essentially as you describe it, though there has been little, if any, new evidence in this case since the private prosecution failed.
The benefit of allowing private prosecutions is that it guards against a situation where the CPS decides not to prosecute for political reasons, as some alleged happened in the Lawrence case (though personally, I disagree).
I don’t believe it accounts for more than about 3 per cent of all prosecutions in England and Wales (half-remembered figure, can’t provide cite) and, where it appears that there is a case toanswer, the CPS will ususally take over and run the case.
The cost of justice in Britain is prohibitively high. Legal aid (financial assistance from the State) is only available in limited circumstances and contingency fees are tightly controlled and only available in personal injury cases. That means if you want to bring a private prosecution, or even a civil case for, say, libel, you need to find several tens, if not hundreds of thousands pounds up front.
Do we in the US really have protection against double jeopardy anymore? No, we don’t. You can be acquitted of a crime, yet be found guilty of the same crime a month later in a civil suit, which requires less proof to convict. That’s something I never will understand.
The civil suit doesn’t find you guilty of a crime, Turbo Dog. It decides that it is more likely than not that you caused significant harm to the plaintiff, and awards money damages. It is impossible to go to jail (except for contempt proceedings, I guess), or to acquire a criminal record as a result of a civil suit.
I understand that completely, but it’s really a matter of semantics. If someone is found not guilty of a crime, how can he be held liable for causing harm to a plaintiff in the committing of said crime that he was found not guilty of committing? That’s what the original double jeopardy law was supposed to be for. If you are found innocent, you are innocent, period. But now there’s a trend in finding someone not guilty of (for example) “murder”, (he didn’t do it) then trying him again for “wrongful death”, (he didn’t kill him, but wait, he caused the family duress because he most likely did kill him) not for prison term but for money. To me, it’s a loophole around double jeopardy. Lose the first case, then do it again on a “lesser charge” for a “lesser reason” and it’s okay. And it doesn’t stop there. People who have lost civil suits after losing a criminal trial still try to find yet another way to punish the person who was found innocent in the first place. Remember Rodney King? The cops were found not guilty of beating ole Rod. Right or wrong, they were found not guilty. Riot happens. Okay, okay, we’ll put them on trial again and find them guilty of violating his civil rights by beating him, even though the first court said they didn’t beat him. Cops go to jail. Right or wrong, guilty or not, that certainly seemed like double jeopardy to me, no matter how carefully hidden it is behind words. JMO.
There is your misconception: The justice system does not find anyone ‘innocent’ but ‘not guilty’. Innocence is a finding that a person did not do something illegal. Not Guilty is a finding that there was insufficient proof that the person violated the law. There is a difference. One is a test of reality and one of culpability.
A good illustration is that of the mental illess defence that results in a finding of Not Guilty by reason of insanity (English Common Law) which may find essentially that a person did for instance kill someone, but that they were Not Guilty of the crime because they did not have an intent because of mental illness. The person then is technically Not Guilty, but certainly not Innocent.
Similar arguments apply to intent in the case of children who commit crime.
Confusion arises from the antonyms Guilty/Not Guilty and Guilty/Innocent which are not direct comparisons.
It must be remembered that all crime is socially constructed. Similar physical acts may be construed differently in different social circumstances. During the Second World War, killing German soldiers was an act of heroism; now it would be an act of terrorism. Only the social circumstances have changed.
The meaning of Not Guilty is essentially that a behaviour has been found to be not a criminal act that has been proved, not a decision about what actually happened. Double jeopardy is aimed at preventing manipulation and coerciveness by prosecutors and to attempt to maintain fairness to the defendant.
The concept of “Presumption of Innocence” is a limitation placed on the State. I can presume you are a lyin’, cheatin’, low-down, scumbag wife murderer based on a glove that doesn’t fit, if I decide to. The state must rely on the verdict of it’s own court.
Civil action is not based on guilt or innocence, and the level of proof required is not as stringent. There is a presumption of equal consideration between the parties, rather than the presumption of innocence on either part. After all, we can’t be investigating the legality of actions of most of the people involved in civil cases, they are mostly lawyers, and corporations represented by lawyers.
The fact that US Criminal Law as applied by current precedents allows rich men to kill their wives with impunity is not a limit on the cost of killing wives. We would not want this exemption to the murder statutes to be available to the common man, would we? The civil statutes allow additional revenue for lawyers as well, and must be protected by Congress, most of whom are lawyers.
Actually, they are innocent of the crime of murder if they did not have malice aforethought. There is no legal finding of innocence, it is assumed unless and until proven guilty. Here is how FindLaw defines the term:
As you can see, legally speaking, innocent <=> not guilty.
I believe that Scotland is completely different in this aspect, so don’t try to hold me to this if you’re there.
1/ There is a presumption of Innocence, i.e. that the person did not do it. Innocence can be seen as a social description.
2/ If there is suffcient evidence, then a trial takes place which determines whether the person is Guilty or Not Guilty. Guilty/Not Guilty can be seen as a legal description.
3/ A person may have carried out the act and be found Not Guilty for many reasons: legal incompetence, having a lawful excuse, etc…
So, a person who kills another may be found not guilty of the offence, but may not be innocent in the matter as far as social description goes:
a/ A soldier who kills as an act of war
b/ A psychotic who kills because of their firmly held false belief
c/ A child or retarded person who lacks capacity and kills
d/ A person who otherwise lacks guilty intent (mens rea)who kills
All of these people would be Not Guilty of the Crime of Murder, but may not be considered Innocent of the act of killing another person.
A useful way might be to use a religious analogy (although I do not personally hold this view) that it is possible for all of the above to be Not Guilty of Murder, but not Innocent before God- an act has been committed which may need to be explained. People in all of the above categories may feel an intense emotion (unfortunately also called Guilt) which may be seen as the absence of the feeling of Innocence before God or their Conscience.
A narrow separation of meaning, but useful anyway.
Well then, why bother having the second trial at all? If guilt is so obvious, why not just declare the defendent to be guilty, and be done with it? Hell, let’s require that all prosecutions be done only when the police are absolutely certain of guilt. Then we can completely do away with trials!
Pjen:
I disagree. The prohibition against DJ is essentially an estoppel, meaning that as far as the courts are concerned, the issue of whether the person is guilty is settled. Maybe it hasn’t been “proved”, but it has been settled, and the government is barred from questioning the conclusion.
Triskadecamus
While in the strictist sense that might be true, realistically it is false. Civil action is based on the claim that the defendent has performed some action that caused damages. Or, loosely speaking, the defendent is guilty of damaging the plaintiff. If it is found that the defendant did not do anything that damaged the plaintiff, then the case is dismissed, or there is a decision for the defendent.