Double jeopardy is defined as being placed more than once in danger of being convicted and sentenced for the same offense, being tried twice for the same offense. A criminal case however, may be re-tried without violating the rule on double jeopardy if a judge declares a mistrial
Where there is a beginning, there must be an ending. Like life, all proceedings, whether judicial, quasi-judicial or administrative must have a starting point and ending point. In a jury trial, jeopardy begins or attaches when the selected jury is sworn; and attaches in a bench trial, when the first witness is sworn.
In criminal case, when the accused is either acquitted or convicted or the case against him is dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a valid complaint or information or other formal charges sufficient in form and substance to sustain a conviction and after the accused has pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the same offense. Double jeopardy can be invoked to defeat a second prosecution for the same offense.
Double jeopardy is addressed exclusively to criminal offense. It is a constitutional right available to avoid a second jeopardy involving the same offense. The second offense upon which an accused is indicted must be identical with the first offense. There is identity between the two offenses when the evidence to support a conviction for one would be sufficient to warrant a conviction for the other. This is known as the “same evidence” rule. Thus, an act resulting in multiplicity of crimes is not covered by the rule on double jeopardy.
Double jeopardy is one of the most challenged and longest standing rule in the English law which dates back in the twelfth century. The U.S. Constitution has adopted the rule in its Fifth Amendment. It is a rule of finality, the laudable purpose of which is to put to rest the effects of the first prosecution.
This rule was established for the safety of the accused. His fortune and peace of mind would be entirely at the mercy of the complaining witness, who might repeat his accusation as often as he wishes without this safeguard. The accused would forever be threatened with a never-ending charge.
Since the advent of technology particularly with the use of DNA evidence, constant debates on the issue of the abolition of double jeopardy rule have ensued. There are pros and cons with respect to the abolition of the rule on double jeopardy.
Guilty people are not punished as argued by pro advocates. They move for the reassessment of the justice system, which they believe, must be free to allow punishment of guilty persons for the crimes they have committed. They argued that the offense has not ended despite the passage of time; that guilt is the ideal criterion to charge a person whether or not he has had a previous trial for the same offense; that injustices are not perpetrated on the victims as on the accused.
Those who are against the abolition of the rule however, argue on the other hand that the double jeopardy rule does not only protect those “guilty persons” but protects everyone from the hazards of constant torment from the state. Innocent people charged and acquitted will not be at peace with the acquittal where there is no assurance that the case has finally ended; that another prosecution might happen in the future.
They argue that a working justice system must provide for an indisputably clear termination of a case. The abolition of the rule would result in the impairment of the investigatory and prosecution processes if there is an assurance that a second trial is available. There will be no end to a fishing expedition of evidence.
The rule however was not without any reclamation. If there is new material evidence, a murder case could be retried, thus, resulting in the abolition of the double jeopardy rule on murder cases. The rule on double jeopardy not only enhances the ability of the state to prosecute and protects the integrity of final judgments but also protects the accused from the stresses and burdens of multiple judicial prosecutions.