Legal Awareness: Double Jeopardy

Legal Awareness of the Double Jeopardy Clause found in the Constitution is a fundamental part of every oneÂ’s legal education. The right not to be prosecuted twice for substantially the same offense is a human right.

The Double Jeopardy Clause is found in the Fifth Amendment provision of the Constitution stating, “nor shall any person be subject for the same offense to be twice put in jeopardy.” Double Jeopardy is essentially the fact of being prosecuted twice for substantially the same offense. The Constitutional right against this is an admission by government that human life is too precious and fleeting to exact from it another round of suffering and humiliation. The Double Jeopardy Clause can be considered a human right, as it guarantees protection against vindictive or malicious recurrence of accusations. It would be a travesty of justice to see a man constantly hounded by accusations of the same nature. Legal Awareness of this concept should be a fundamental part of every one’s education. The following are the legal requisites to raise the defense of double jeopardy:

Legal Awareness: Double Jeopardy Requisite No. 1: A first jeopardy must have already attached prior to the second.

It attaches a) upon a good indictment for the offense; b) before a competent court: this means that the court must have proper jurisdiction over the person and the offense charged; c) after arraignment, wherein a person is summoned to answer an indictment; and d) after plea, wherein the accused pleads “guilty” or “not guilty.”

Legal Awareness: Double Jeopardy Requisite No. 2: The first jeopardy must have terminated.

The first jeopardy is terminated by a) an acquittal – a judgment of acquittal is immediately final; b) by final conviction for the offense charged – a judgment of conviction is final when the period for appeal has lapsed or when the sentence has been totally or partially served or when the defendant has expressly waived his right to appeal; c) by dismissal without the express consent of the accused – the dismissal was upon the sole motion of the prosecution; or d) by dismissal on the merits of the case – the ruling was based on the facts and legal arguments presented.

Regardless of these circumstances, where the prosecution has not been given “due process,” acquittal or dismissal is no bar to the refilling of the case. This legal awareness is an exception to the law.

Legal Awareness: Double Jeopardy Requisite No. 3: The second jeopardy must be for the same offense in the first.

In order to determine whether the two charges are identical, one test used is what is sometimes referred to as the “same evidence test:” whether the evidence needed in one case will support a conviction in the other. The identity of offenses, however, does not require a one-to-one correspondence between the facts and the law involved in the two charges. It is necessary though that one offense is completely included in the other offense.


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Patrick Regoniel
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Posted on Sep 29, 2010
Rama lingam
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Posted on Sep 28, 2010