Research Paper: Double Jeopardy the Ancient

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[. . .] The outcomes of such a conviction are intense; however, the anxiety and anticipation starts during the early stages in the criminal trial process and will influence the innocent and guilty individuals subsequently (Roberts, 2002). The process is inconvenient because the criminal trial can influence careers and relationships even before the court deliver its verdict upon the accused. In addition, the public nature of the criminal trial makes the process embarrassing and stigmatizing for the accused.

In addition, retrials are extremely burdensome. Exposing an individual through the perils of the legal justice system process more than once approaches the confines of oppression. It is apparent that some accused who undergo post-acquittal retrials suffer psychological distress. In addition, for such accused people, they lack public sympathy because they have faced two trials before they finally face conviction (Rudstein, 2007). It is not in order to dismiss this argument, and the deduction of innocence must point considerations of hardship linked with post-acquittal retrials (Coffey, 2003). Moreover, apart from the accused, family, friends, witnesses, and victims may also suffer hardship on relaxation of prohibition associated with double jeopardy. In this matter of double jeopardy, the constitution should treat its citizens with dignity as outlined by the constitution, and should seek justice for the involved where compelling evidence is available (Dennis, 2000).

Removing the Immunity against Post-Acquittal Retrials

Concerning the rationalizing, the exceptions to the prohibition on double jeopardy, the Law commission for England, identified a question, "Is it possible to identify a group of case in regard to the objective of achieving correct results clearly outweighs the justifications underlying the rule against double jeopardy?" In some situations, the stern application of the rule against double jeopardy is an obstruction of justice for victims of violent activities and the interests of justice in convicting and sentencing the accused (Rudstein, 2007). However, statutory alteration of double jeopardy is not always a means to limit personal liberty; in addition, the prohibition can serve as an obstacle to justice. The protection offered in the reforming of the legislation will make retrial orders outstanding in rare cases, which have new and compelling proof.

The objective of the law of evidence, criminal trial, is to secure legitimate verdicts, which are factual and morally authoritative. Although the fundamental principles of criminal justice and offender's right is a significant element of moral authority, it is essential that the court should strike a fair, and balance in the necessity to secure an accurate verdict at trial, and to maintain human dignity in the criminal trial (Coffey, 2003). For example, in an adversarial system, the criminal trial aims to establish whether the prosecution can provide evidence to establish the accused's guilt beyond doubtless weight. Prohibition on double jeopardy is a constitutional and human right; therefore, the state should justify any abrogation.

Fresh evidence

This refers to evidence not adduced in the original legal proceedings, and subsequently, not have been adduced in the same proceedings by exercising reasonable carefulness. Therefore, if there was overlooking of evidence during the first trial, a retrial will not push through. There is a need for reasonable diligence in order to discourage inadequate investigations and prosecutions owing to the resources, and powers vested by the state. New evidence may arise from new forensic methods previously unavailable to police officers and the prosecution. However, this raises a policy issue as to whether the test of establishing the coherence of the new evidence should depend on the safety of a previous acquittal rather than on the strength of a second prosecution (Doak, 2005).

Compelling Evidence

Compelling evidence refers to reliable, substantial, highly probative, strong and likely to influence the result of a jury's deliberations. The Law Commission of England put forward a test to verify whether the new evidence would make the prosecution strong, whereby, if properly directed would lead to conviction. Such a test would ensure that the aimed pre-trials would only happen in the interest of justice (Coffey, 2003).

Interests of Justice

The requirement for post-acquittal retrials to have basis or rather embodies the interests of justice involves factors such as, whether there is a likelihood of a fair trial, length of time in regard to the previous acquittal and whether the police and the prosecution acted quickly in requesting a retrial (Rudstein, 2007). This will help the court to determine the objective behind seeking the pretrial, by determining whether the police or prosecution acted with reasonable diligence in seeking a retrial of an acquitted individual.

Reform in England

The Law Commission recommended that the prohibition on double jeopardy needs abrogation in case the police or prosecution discovers new evidence in respect to an acquittal. In addition, the Commission suggests a statutory exception for double jeopardy. However, there are restrictions whereby abrogation should apply, in a case of murder, which the Commission considered qualitatively varied among violent cases (Roberts, 2002). Regarding this restriction, the commission suggested the statutory exception should apply retrospectively (Coffey, 2003). In cases such as scientific breakthroughs that might bring rise to new evidence, primarily through D.N.A., a hit woman who seeks legal attention after the acquittal of those who hired her, are examples of cases that may need re-opening an acquittal. In addition, cases where new evidence of the offender's crime is available, evidence of a scientific nature, incontestable confession, a weapon in a home with an offender's fingerprints, and CCTV footage also qualify for re-opening after an acquittal (Parkinson, 2003).

In addition, the restrictions offered by the Law Commission should also apply on serious crimes, except murder, other violent crimes punishable by life, death penalty, or long-term imprisonment (Rudstein, 2007). On modification of the legislation, this will include crimes such as rape, manslaughter and armed robbery. By so doing, the legal system will convict the guilty, acquit the innocent, punish offenders and reduce re-offending. In addition, an accused must have previously qualified for acquittal for a qualifying offence for which they could have faced conviction (Parkinson, 2003). However, the accused should not face trial of an offence for which he or she had previously faced trial and convicted.

In addition, the D.P.P who has powers to apply to the court of appeal for orders quashing an acquittal and retrial. This will require a written consent of the D.P.P, which the prosecution must first obtain and show satisfaction on the new evidence available that must aim for public interest for a retrial to go through. However, a court may nullify an acquittal although there were orders or retrial in the interests of justice when there is availability of new and compelling evidence of the offender's guilt. Provisions of the 2003 Act involving modification of double jeopardy have retrospective influence (Dennis, 2000). In addition, exceptions apply in cases where the accused is not guilty owing to insanity.

The legal system may impose reporting restrictions in the interest of justice to avoid the threat of severe pre-trial publicity, which could prejudice a fair criminal proceeding where there is an active application made by the prosecution to nullify an acquittal (Coffey, 2003). In addition, provision is made for reporting restrictions in the event of a retrial if a court opines that publication is unfair to the administration of justice. The Act also makes provision for arrest, detention and bail and the court should consider procedural factors in relation to investigations concerning people formerly acquitted. The procedure for a retrial involves notice, timelines, and the accused should appear in any hearing concerning a retrial request and should have representation (Coffey, 2003).


Coffey, G. (2013). Post-Acquittal Retrials for Serious Offences in the Irish Criminal Justice

Process: Lessons from England and Wales. Irish Journal of Legal Studies, 3 (1), 36-66.

Corns, C. (2003). Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?

Criminal Law Journal, 27(2), 80-101.

Dennis, I. (2000). Rethinking Double Jeopardy: Justice and Finality in Criminal Process. CRIM

LAW REV, 933-951.

Doak, J. (2005). Victims' Rights in Criminal Trials: Prospects for Participation. Journal of Law

and Society, 32(2), 294-316.

Parkinson, C. (2003). Double Jeopardy Reform: The New Evidence Exception for Acquittals.

UNSWLJ, 26, 603.

Roberts, P. (2002). Double Jeopardy Law Reform: A Criminal Justice Commentary. The Modern

Law Review, 65(3), 393-424.

Ruva, C., McEvoy, C., & Bryant, J.B. (2007). Effects of Pre-trial Publicity and Jury

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Double Jeopardy the Ancient.  (2013, September 11).  Retrieved May 25, 2019, from

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