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Why the Confusion with Double Jeopardy?


One of the basic tenets of the rights of the criminal in the United States is the protection against double jeopardy. As a rule, a person cannot be tried for committing the same offense twice if he or she has already been convicted for it. No criminal defense trial will take place if the court’s records indicate the defendant has already served the full sentence for the crime in a previous conviction.

That said the double jeopardy clause is still a confusing aspect of the country’s justice system. Outside observers and law students alike find difficulty in determining which situations and cases call for a double jeopardy-induced dismissal or which situations can be described as a repeat offense that qualifies for the clause. Contrasting definitions and case law can add to the confusion in most situations.

Jeopardy in Review

To get a better understanding of the cause for confusion, it is time to browse a little on constitutional history. Double jeopardy was brought into the states from English common law, with that prior law being based on historical interpretations from the likes of the Romans and the Greeks. It has undergone various transformations through the different state constitutions that adopted it prior to the drafting of the unilateral Bill of Rights that is recognized across the country today.

As the Supreme Court defines it, double jeopardy protection is embodied in three key factors: no second prosecution after acquittal, no new prosecution for the same offense after a previous conviction, and no multiple penalties for the same crime. Despite these laid-out tenets, the Court itself admits that a consistent prerequisite for a double jeopardy clause invocation can be hard to standardize. This lack of standard precedents has haunted lawmakers and attorneys for years, making it difficult to pin a definite double jeopardy case to call as the standard for all succeeding decisions.

Cause for Confusion

The Supreme Court definition is a fairly good stepping stone to decide when a double jeopardy clause can be invoked, but remember that some offenses and cases can get fairly complex that the three basic precedents may no longer apply. The period of time when a defendant is considered to be eligible or not for double jeopardy protection is another matter of contention.

One of the main points of confusion for double jeopardy is what really constitutes as ‘the same offense’. In some cases what counts as the same offense needs to have the exact same precedents as in the previous hearing. All the previous facts and evidence from the original case may or may not be taken into account as well.

The Last Straws

Many argue that the vagueness of the double jeopardy clause reduces its effectiveness in protecting the accused from exploitation by prosecutors who can dangle the possibility of invalidating the protection to achieve a plea bargain. Others take note of the fact that the government seems to be taking only case into account to determine what can be considered a case for a repeat offense, the case of United States v. Powell. This has led to what legal experts have dubbed ‘mixed verdicts’, where multiple overlying charges can lead to convictions that overtly override the double jeopardy clause.

Looking through recent proceedings, however, would indicate that Supreme Court is getting tired of the confusion caused by what it deems as ‘broad statutes’. The long-standing case concerning a Puerto Rican senator and a local businessman, which is being deliberated by the highest court, will test the limits of the double jeopardy clause. Only time will tell, however, if the Supreme Court will finally make a more solid precedent for double jeopardy with this bizarre case.

Double jeopardy is an important weapon in a defendant’s arsenal that protects him or her from exploitation and excessive penalties, but it can be a double-edged sword when used improperly. It is hoped that with the latest developments in the Supreme Court, the interpretation for this statute will be clearer, allowing more defendants to receive the acquittal they seek.

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