RUNNING HEAD: Double Jeopardy: The Outdated Clause That Americans Often

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Double Jeopardy: The Outdated Clause That Americans Often Overlook

Andrea Toledano
Florida International University
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Double Jeopardy: The Outdated Clause That Americans Often Overlook

In theory, the Double Jeopardy Clause

protects the innocent, but in practice, it

often protects the very people it seeks to

imprison.

Amid the primary message set forth by the Fifth

Amendment of the U.S. Constitution, which, in the

picture to the left, is even shown in bold, lies the

less-important Double Jeopardy Clauseor so you

would think. The case against self-incrimination is of immense importance

indeed, setting the tone for many criminal cases that have occurred since

and, ultimately, even inspiring the famous Miranda rights that you hear on

shows like Law & Order: SVU. But this aspect of the Fifth Amendment isnt

the only one mentioned on the show, and it certainly isnt the only one of

importance. There was an episode of this very show that changed the entire

course of my lifecreating a sense of urgency in a 16-year-old who had

instead always dreamed of becoming a high-powered magazine editor. This

16-year-old went from The Devil Wears Prada to aspirations of changing

America in the one way that promotes a literal change: running for Congress

and contributing to society one legislative sponsor at a time. The specific

target of this 16-year-old girl: to rewrite the Double Jeopardy Clause.

This sudden epiphany grew by the day, but it was inspired by an

episode that demonstrated the very lethal downside to the Double Jeopardy

Clause: new evidence was not to be used on a case that had previously
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Double Jeopardy: The Outdated Clause That Americans Often Overlook

acquitted a murderer. Perhaps this is the very definition of the Double

Jeopardy Clause, but this is not supposed to sound redundant; this paper is

instead supposed to critically analyze the rhetoric behind the lawthe very

rhetoric that keeps it from protecting America, and that simultaneously

keeps it in favor of criminals, allowing them another chance to commit a

crime. The problem behind the law these days lies in the very definitionat

least in practice. A Google click on double jeopardy will inevitably lead you

down a painful road, with findings on infamous cases, such as the O.J.

Simpson case. One could argue that, in many ways, the Double Jeopardy

Clause is the only part of the Fifth Amendment that currently serves as an

injustice to the average American and that, dare I say, even endangers the

lives of those that we have sought to protect.

Intent:

The Bill of Rights became law in 1791. When James Madison came up

with these amendments, his intent was for the Double Jeopardy Clause to

protect innocent Americans from being repeatedly tried for matters that had

already led to acquittals. (Note: if acquitted in criminal court, the acquitted

individual can still be tried in civil court afterward; law applies to different

levels.) During these times, DNA testing was inexistent, but when people

argue on grounds of redundancy now that DNA evidence is almost fully

accurate, others argue that judges might still be biased.

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Double Jeopardy: The Outdated Clause That Americans Often Overlook

While both sides make valid claims, it is essential to look at both sides

fully and at the rhetorical implications as well as taboos that come attached

to such claims. Technicalities have kept the law intact, though in many of

these instances, the technicalities are only strong enough to withstand the

storm due to rhetorical devices used by politicians. For the most part, it

seems as though the redundancy of the law has continued to exist due to

lack of attention by the public and politicians. It is not discussed often and is

therefore overlooked by Members of Congress, though if it gained national

attention in more cases similar to that of O.J. Simpson, it might warrant a

second look.

The Visual Perspective:

The O.J. Simpson case is exactly what is referred to as a high-profile

case having to do with double jeopardy. This clause has been talked about

infamously in regards to O.J. Simpson, especially at the height of the

incident. When his name comes up, his court trial is often what comes to

mind, along with double jeopardy, because it has kept the jury from possibly

reaching a guilty verdict. But not enough attention has been given to the

stipulations of the law by politicians.

The Media-Centered Perspective

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Double Jeopardy: The Outdated Clause That Americans Often Overlook

Although the O.J. Simpson case also plays a role in the media-centered

perspective, because it was all over the news, increasing talks of the criminal

systems flaws, there is so much more substance to double jeopardy in

media sources we rely on today. From a rhetorical standpoint, it is difficult to

counter the Bill of Rights. It is partly a matter of ethos; after all, few will

argue against the very document that has shaped the laws we abide by and

interpret. It has also given way to implementing such laws. Upon mentioning

my very real desire to alteror amendthe Double Jeopardy Clause,

responses often vary; I am sometimes met with much skepticism on one end,

and with proclamations, expressing how ambitious I am, on the other. At

best, even the most amazed individual scoffsbecause just as some do not

question the Bible, there are others who do not question the Bill of Rights. It

is not so much the messagepeople who do not know what double jeopardy

is also have opinions on the matter, merely because they know that it has

been included in the Bill of Rights. So, ethos is enveloped in the media-

centered perspective; the sources that argue for or against the particular

clauseand the clause itselfare components of credible documents. The

entire Constitution is based on the premise of change, but this ambition is

not seen as promising because of various misconceptions and, quite frankly,

outdated reasoning.

Aside from that, it is true that the law itself was written during

uncertain times; the country had just established itself as an independent

nation and the leaders of the nation knew that this instability was not
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permanent, which is why they created a processor, better yet, processes

that would allow the laws to be altered as needed, with just a little bit of

work. This does not take away the credibility of the media sources. Little did

they know, during these fearful times, that we would have created DNA

testing in merely a few centuriesrendering this law useless to a degree,

even if it is not a common subject and people refuse to fully question it.

Some laws are arbitraryand yet most laws cannot be changed

because the changes might cause contradictions among other laws. The

Double Jeopardy Clause is taken literallybut if one looks at it from an

objective standpoint, it is interpreted incorrectly. Nor shall any person be

subject for the same offence to be twice put in jeopardy of life or limb (Bill

of Rights, US Constitution) should be applied under most conditions, but not

when it comes to endangering others. The law also goes directly against the

Declaration of Independence (US 1776). This particular document states that

safety is of utmost importance to the nation and that it is the right of the

American people to change laws as seen fit and as we deem necessary

through time. This cannot be arguedthe ethos behind this document is

undeniable.

The 9th Amendment of the U.S. Constitution (also part of the Bill of

Rights) gives the people rights that have not already been given to the

governmentimplied rights, and enveloped within these rights, safety is at

the forefront. If this law endangers Americans exponentially, it should be

grounds for immediate removal and we should work toward this reality
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before we risk keeping it as is at the cost of innocent lives. Certain

technicalities could perpetually allow people to be murderedand all for

what? To keep a law intact that was designed to be altered? The Bill of Rights

can be interpreted in various ways, so this particular section should be

interpreted to fit modern times.

Legal studies indicate trouble in paradise for those trying to change the

Double Jeopardy Clause. Ex post facto law presents us with an issue. Let us

take the aforementioned O.J. Simpson case: he was acquitted, despite

evidence that indicates abuse prior to the death of his ex-wife (Noble). There

have been many cases like his; Americans are given the right to an attorney

(though he was able to assemble a qualified bunch), the right to a fair and

speedy trial, and are afforded the opportunity to admit to a crime without

getting jail time if announced after a wrongful acquittal.

Though DNA testing was around for OJ Simpsons case, let us assume,

for the sake of this paper, that it was notand let us assume that the Double

Jeopardy Clause is overturned 22 years after the fact. Now, we will take a

look at ex post facto law and where the problem presents itself. Because the

law deals with actions that were committed before such actions were

considered crimes, the protocol is generally complexbut, ultimately, a

person cannot be punished for committing a crime that was considered legal

at the time of its doing. For this reason, a very large argument centered

around altering the Double Jeopardy Clause is rebutted. If we cannot reopen

cases from the past (or up until the hypothetical point where the law is
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overturned), much of the basis for changing it in the first place is invalid

because the odds of a wrongful acquittal are lower now than they were

before. However, if arguing for a change, there is still a powerful and

emotional argument that could be made for unmistakable evidence that

arises after the fact, which could still take place today.

Regardless of where one stands on the spectrumor whether one even

has a stance on matterit is undeniable that both sides are valid. Stasis is

reached, therefore, by accepting that, in reality, there are biased judges and

innocent people who become so anxious they wrongly testify, but that there

are also a fair amount of cases where compelling evidence only arises after

wrongful acquittals. Judges are human, which means that they might make a

mistake the first time around and, though we like to believe that we are the

most advanced nation, we are still steps behind from perfection. In fact,

because perfection is unattainable, we should hold judges to high standards

the first time around while still leaving space open for error. We can all agree

that this law is dangerous on a national scale, and that it sometimes puts

innocent civilians in danger by indirectly provokingor even encouraging

the accused person to attempt another crime.

Ethos and the Statute of Limitations

The statute of limitations allows for two exceptions: murder and rape.

As of 2016, 32 states within the U.S. consider the capital punishment to be

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legal (ProCon.org)and murder is cause for it. Perhaps double jeopardy

should not be frowned upon in cases of extreme disturbancefor example,

gruesome homicides or violent rapes. Altering the Double Jeopardy Clause is

important; it cannot be avoided merely because of technicalities and political

rhetoric. Families cannot afford to live their lives without closure if their loved

ones have been affected by cases that inevitably were never closed due to

inability to reopen such cases after compelling evidence appears.

Many politicians avoid the subject because of its controversy, but

Marco Rubio spoke up about it. He claimed that certain cases should call for

retrialthough it was said that, in sponsoring related legislation, he was

taking importance away from one of Americas principles: due process.

Ultimately, however, this is not an issue that should be taken lightly or

ignored due to a technicality. A person who attempts to mock the

government after a wrongful acquittal (read: O.J. Simpsons book on how he

hypothetically would have killed his ex-wife and her friend) could

appropriately source the First Amendment (freedom of speech).

It comes down to one thing: how it affects others. If someone is

arguing that he or she has a certain right, it is essential to determine

whether that right violates that of another. Saying bomb in an airport, for

example, could land someone in jailand could cause them to undergo

serious investigations. Why, then, does this not apply to other laws?

Therefore, freedom of speech is a right to the extent that it does not cause a

direct fear, or pose a threat, to another. With this in mind, it is reasonable to

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expect that wrongfully acquitted people would either come forth and serve

time voluntarily or they would steer away from unwarranted attention. We

cannot expect people to be reasonable, though, so if they truly committed

the crime, they should be retried if they do not speak up and take

responsibility first. Americans should learn that there are consequences to

their actions and that, while one is allowed the luxury of a lawyer, murder is

a very serious action.

Logos and Pathos Keep It From Change:

Logic is used by claiming that judges should not be acquitting falsely,

while emotion keeps it in place by claiming that innocent lives could be

destroyed by allowing vindictive judges to reopen cases because they are

simply biased. Nevertheless, the Double Jeopardy Clause can be amended,

despite being a component of the Bill of Rights. This would not make the

Constitution any less credible. Though we, as a country, have a long way to

go before the inherently racist court system sees long-term improvements,

we have progressed in matters that no person would have been able to

foresee even 20 years ago. Simply during the Obama Administration, we

witnessed Democrats tremendous feat, accomplishing what many

presidents have not been able to accomplish. When deliberating whether the

Fifth Amendment might benefit from change, this is an important

accomplishment to keep in mind, simply because it demonstrates that when

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we come together as a country, we are able to reshape our policies while still

holding true to our core values.

Life is essentially about timing, and President Obama was able to pass

the Affordable Care Act in a landslide victoryand, needless to say, Kairos is

sometimes the catalytic touch to progress. Now that we have established

that the Double Jeopardy Clause is amendable, and that Kairos is the driving

force promoting change, I will provide an overview of the lawwhich should

clarify the rhetorical componentbut first, I will discuss laws and policies

that counteract the Double Jeopardy Clause as it stands currently.

Verdict:

If someone didnt commit a murder, why would they live in perpetual

anxiety of getting caught? In the 21st century, how would a vengeful enemy

or a determined judge be able to reopen a case that is compelling enough if

the person is innocent? Perhaps the person was acquitted on a technicality

the first time around or perhaps the available evidence was not enough to

convict at the time. The odds of someone successfully planting false

evidence is rather lowwhen the odds of a wrongfully acquitted individual

striking again are rather high. In fact, we might assume that it is more likely,

in modern times, to acquit than to convict wrongfully. How is it, then, that the

Fifth Amendment of the U.S. Constitution continues to protect potential

criminals, despite the outdated factor and the fact that we can now rebuke
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all the primary points that set the law into action in the first place? We have

evolved as Americans and have come a long way since the nations

founding. The Double Jeopardy Clause should, too.

Works Cited:

Maloney, Kathleen. "Psychologist's Testimony Violated Defendant's Constitutional Rights." Court News Ohio.
Court News Ohio, 22 Jan. 2015. Web. 20 Apr. 2017.

News, Abc. "O.J. Simpson Trial: Where Are They Now?" ABC News. ABC News Network, 12 June 2014.
Web. 13 Apr. 2017.

Noble, Kenneth B. "Prosecution Says Simpson Abused Wife For 17 Years." The New York Times. The New
York Times, 11 Jan. 1995. Web. 20 Apr. 2017.

"32 States with the Death Penalty and 18 States with Death Penalty Bans - Death Penalty -
ProCon.org." Should the Death Penalty Be Allowed? Web. 20 Apr. 2017.

Will, George F. "Marco Rubio's Record of Bad Judgment." The Washington Post. WP Company, 13 Jan. 2016.
Web. 13 Apr. 2017.