A BRIEF HISTORY OF THE GUARANTEE AGAINST DOUBLE JEOPARDY

I. Introduction

The Double Jeopardy Clause of the Fifth Amendment prohibits the government from
prosecuting a person again for the same offence after being tried and acquitted. The
constitutional guarantee prohibits the government from bringing the same case against
someone who has been tried and found not guilty a second time. It also prohibits the
government from imposing multiple punishments upon a person in successive proceedings.
Sometimes, it prevents a judge from prematurely terminating a person's first trial before the
fact-finder reaches a decision, either by announcing a mistrial or by dropping the accusation
brought against him.

In Green v. United States, the Supreme Court provided the most straightforward
explanation of the Double Jeopardy Clause's ultimate purpose. The constitutional prohibition
against "double jeopardy" was designed to protect an individual from being subjected to the
hazards of trial and possible conviction more than once for an alleged offence. The
underlying idea is that the State should not be allowed to make repeated attempts to convict
an individual, causing embarrassment, expense, and insecurity. Courts and jurists have
recently deemed the defence against being put in danger twice for the same offences a
fundamental right. The essential nature of the protection against double jeopardy can hardly
be questioned, according to the United States Supreme Court in Benton v. Maryland. Judge
Felix Frankfurter referred to the shelter as "a fundamental requirement of a civilised criminal
procedure." Justice Ivan Rand of the Canadian Supreme Court made a similar assertion.

II. Origin of the guarantee.

The precise origins of the guarantee against double jeopardy are still being determined. Early
in the twentieth century, one American court declared that the doctrine "seems to have always
been embedded in the common law of England, as well as in the Roman law, and doubtless in
every other system of jurisprudence." However, the Code of Hammurabi does not refer
double jeopardy, leading one scholar to conclude that "the alleged universality of the double
jeopardy principle is not apparent from a study of early law." The United States Supreme
Court recognised in Palko v. Connecticut that double jeopardy is not always forbidden.

Nevertheless, ancient Jewish law protects against double jeopardy, with the Talmud
stating that an acquittal may not be reversed in capital cases. Deuteronomy 25:2 states that
when a dispute between men is brought before a court, a guilty man who deserves to be
beaten shall be flogged in the judge’s presence according to the measure of his misdeeds.
Rabbi Akiba interpreted this verse to mean that only one punishment might be inflicted for
one offence. In 355 B.C., the Greek orator and pleader in law courts Demosthenes, in a
speech against Leptins, argued that the laws forbid the same man to be tried twice on the
same issue, be it a civil action, scrutiny, a contested claim, or anything else of the sort. He
also stated that a man could not be tried twice in ancient Athens for the same offence. The
main concern of a man brought into court in the last half of the fifth century was to win a
verdict, as once tried, he could not be prosecuted again on the same charge. This prohibition
against double jeopardy in ancient Greek law may have needed to be completed, as pleaders
could find loopholes in the law and use charges of false witness to reopen questions that had
already been disposed of by the courts.

The Roman law contained the maxim nemo debet bis puniri pro uno delicto,
that is, “no one ought to be punished twice for the same offence.” Roman law afforded
protection against double jeopardy, but it differed from modern double jeopardy principles in
that criminal prosecutions were not brought by the state. Instead, a criminal prosecution could
be brought by the victim of the crime or by any Roman citizen. In most cases, a person
injured by the conduct of another could elect to bring either a criminal action or a private
action, known as a delictual action, seeking a penalty - not compensation - from the
wrongdoer. The Digest of Justinian explains that the same accuser cannot charge the
individual if the person who has come forward as the accuser is pursuing his own injury and
shows that he had not known that another had brought an accusation. The canon law, which
began its development near the end of the Roman Empire, contained a prohibition against
double jeopardy. The Gregorian Decretals, a compilation of papal decretals promulgated by
Pope Gregory IX in 1234, contains a chapter proclaiming that an accusation cannot be
repeated with respect to those crimes of which the accused has been absolved. Gratian, a
Camaldolese monk who taught in Bologna, published his Concordantia discordantium
canonum in 1140, containing a mass of authorities from the past, including canons of church
councils, scriptural passages, and decisions of popes. The Decretum contains two references
to double jeopardy, one stating that God does not punish twice in the same matter and the
other stating that there can be no further action involving the same crime. Despite the
seemingly absolute nature of the canon law's prohibition against double jeopardy, “criminal
defendants were not in the end given the blanket sort of protection the words suggest.” On the
other hand, “the reality of the basic principle within the canon law always remained real
enough.”

III. English common law

The first recorded mention in English law of an individual raising a plea of a former acquittal
to bar a prosecution for the same offence appears to have occurred at the beginning of the
thirteenth century. Goscelin, the son of Walter, filed a private lawsuit (sometimes known as
an "appeal") against Adam de Rupe for the murder of his brother Ailnoth in a case that was
decided in 1201. Adam asserted that "on another occasion", Ailnoth's wife had filed a
complaint against him for the same murder and that "he withdrew out thereof by the
judgment of the lord king's court.” Because Goscelin was in Ireland at the time of the murder
and could not witness or hear it, and because "the appealed had withdrawn quit therein," the
court declared Goscelin's appeal invalid, appearing to accept Adam's claim of an earlier
acquittal. In a case decided two years later, Ralph Russiadic brought an appeal against
Richard Old for killing Richard, the servant of Ralph's lord. Adam of St. Brides requested the
same killing against Robert, son of Aier, and several others, including Richard Old, as
accessories. The court did not decide the case based on this plea, but because Ralph did not
mention sight or hearing in his appeal, the appeal was null.

The common law's guarantee against double jeopardy became

entrenched through pleas of autrefoits, acquit, convict, and pardon. By the second half of the
eighteenth century, Sir William Blackstone, by the second half of the 18th century, argued
that the principle that "no man is to be brought into jeopardy of his life, more than once for
the same offence" was a "universal maxim" of the common law.

Scholars have advanced three theories explaining the introduction of the double
jeopardy principle into English common law. One theory postulates that the code came from
the Continent through canon law or Roman law, which influenced treatise writers and judges;
according to the hypothesis, these authors added Roman law's more sophisticated and
complex jurisprudence to the comparatively underdeveloped common law. The earliest
judges of the ordinary law courts and the chancellors in England were clergy members who
had studied Roman law. When called upon to formulate principles, they naturally turned to
the ideas they were familiar with from their studies.
The second theory suggests that the posthumous victory of Thomas a Becket, the Archbishop
of Canterbury, in the twelfth-century power struggle between the Church and King Henry II
led to the introduction of the double jeopardy principle. William the Conqueror appointed
Lanfranc, an Italian lawyer and theologian, to the post of Archbishop of Canterbury to repay
the Pope for supporting his conquest and gaining control over the English Church. Lanfranc
established ecclesiastical courts alongside the royal courts, claiming jurisdiction over spiritual
matters and criminal and civil cases in which a clerk (cleric) stood accused of committing a
crime or a wrong.

The third theory explaining the introduction of the protection against double jeopardy into
English common law suggests that it evolved from the Anglo-Saxon criminal procedure as a
reasonable and apparent procedural assumption by the courts. This theory argues that the
unimportance of the protection during the first five hundred years of its existence, as
illustrated by its numerous exceptions and its vulnerability to legislative interference, points
towards procedural evolution rather than introduction from Roman law. The appearance of
the plea of a former acquittal in 1203, so soon after the clash between Becket and Henry II,
shows that that conflict could not have played a significant role in the introduction.

Whichever perspective they hold, academics largely concur that the genesis of the
English law's prohibition against double jeopardy "is, and undoubtedly will remain, a topic of
speculation" because "much of Western law stems from a common fund of shared judicial
notions." The extent to which the common law protected a person against double jeopardy
before Henry II's capitulation in 1176 is difficult to ascertain. Evidence suggests that the
earliest English rulers did not regard double jeopardy questions. Henry I's charter of
Liberties, issued in 1101, contained no mention of protection against double jeopardy. In
1163, Henry II's claim that he could retry a cleric, Philip de Brois, following his acquittal in
an ecclesiastical court of murdering a knight brought his dispute with Becket to a head. In
1166, Henry II included in the Assize of Clarendon a provision that a person acquitted by the
ordeal must abjure the realm if he were of bad character.

A comprehensive ban on double jeopardy did not exist in England even after Becket's
murder and Henry's submission. Double jeopardy protection is not mentioned in the earliest
treatise on common law, which Ranulf de Glanville allegedly wrote in the latter half of the
twelfth century, nor is it mentioned in the Magna Carta, which was first signed by King John
in 1215 and confirmed by King Edward I in 1297. The principle against double jeopardy was
violated by a statute enacted early in the fourteenth century that allowed the royal courts to
ignore an ecclesiastical court's determination and any punishment imposed by such a court. It
provided that the King's Court would discuss the same matter regardless of the Spiritual
Judgement.

Situations not involving clergy, however, show some recognition of the principle
against double jeopardy following the Henry II-Becket dispute, but its development and
emergence into modern double jeopardy law were slow. The power to prosecute for offences
had yet to coalesce in the state, so the King and a private subject in a suit against another
could bring criminal prosecutions. This latter method of prosecution, known as an "appeal,"
initially could be used for various offences, but by the end of the thirteenth century, its use
was limited to serious ones. The protection against double jeopardy limits the state’s power to
prosecute and punish an individual.

By the beginning of the thirteenth century, a judgment of acquittal in an appeal

brought by a private individual barred a further suit by that individual and any other
individual otherwise entitled to bring an appeal. In a treatise written between 1220 and 1256,
Bracton stated that a person against whom an appeal was brought could live except against
the appeal by saying that they had earlier been appealed of the same deed by another and had
departed quit by judgment. This rule applied to acquittals by a jury and those obtained
through trial by battle. In the fourteenth century, a judgment of acquittal in a suit brought by
the King barred a further suit on an indictment by the King. Bracton, writing in the thirteenth
century, indicated that an acquittal of an appeal of homicide barred a suit by the King for the
same deed. Britton stated that although an appellee of homicide acquits himself as to the
King's suit, the suit of any other, who will prosecute within the year and day, is not taken
away. Conviction of a felony at this time carried a mandatory death penalty; therefore, a
prohibition against a second conviction was irrelevant.

Certainly, by the fifteenth century, an acquittal on an appeal following a trial by jury

barred prosecution for the same offence by indictment. An acquittal on an indictment barred
an appeal for the same offences. In 1487, a statute created an exception to the plea of a
former acquittal in homicide cases. This allowed for the immediate prosecution of an
indictment for homicide without waiting for an appeal as long as the appeal was brought
within a year and a day. The sixteenth century, for the most part, proved to be a “dark period”
in developing rules prohibiting double jeopardy. In order to prevent Welsh criminals from
receiving favourable treatment from Welsh juries, a statute was enacted in 1534 allowing
individuals acquitted of felonies committed in Wales to be tried in the adjoining English
county within two years of the alleged offence. In 1591, the Court of King's Bench held that
an individual acquitted of an offence under an insufficient indictment could be tried again for
the same offence under a new indictment because he was never in jeopardy under the
defective indictment. This was one of several judicial decisions that limited the protection
against double jeopardy. The sixteenth century saw the first legal text to describe the pleas of
autrefoits acquit and convict, but they still represented little more than a set of rules of
procedure.

Double jeopardy law emerged in England in the last half of the seventeenth century,
with prosecutions by the King replacing private prosecutions by appeal as the preferred
method of prosecution and Sir Edward Coke's Institutes published posthumously in 1641 and
1644. Lord Coke's Third Institutes clarified the concept and emphasised its importance, but
the English Bill of Rights did not mention protection against double jeopardy. Sir Matthew
Hale wrote The History of the Pleas of the Crown (Historia Placitorium Coronae), which
detailed the pleas of autrefoits to acquit, convict, and pardon. However, it was not published
until 1736-39, more than sixty years after his death. Whether Hale's work influenced double
jeopardy law during the seventeenth century is unclear.

During the last half of the seventeenth century, English courts began dealing with
various double jeopardy issues, such as whether an individual acquitted of an offence could
be re-indicted for a different offences based upon the same conduct for which he had been
acquitted. The Court of King's Bench in the 1660s expanded the protection against double
jeopardy by holding that a prosecutor could not seek a new trial following an acquittal and
that a bill of exceptions could not be employed in criminal cases. It also refused to expand the
scope of review by writ of error, which was limited to errors on the face of the trial record.
Had the Court allowed further trials, further trials would have been permitted.

The Court of King's Bench recognised judgments of other criminal courts in England
and held that an acquittal in another country barred a subsequent prosecution for the same
offence in England. In Rex v. Hutchinson, the Court concluded that Hutchinson's previous
acquittal of murder in Portugal barred his prosecution in England for the same killing. The
Court of King's Bench dealt with the practice of discharging the jury when an acquittal was
imminent, allowing the prosecutor to bring a stronger case in a new trial. By the second half
of the eighteenth century, the pleas of autrefoits acquit, autrefoits convict, and pardon were
fixtures in English common law.

IV. Double Jeopardy Protection in America Before the Adoption of the Fifth
Amendment

While double jeopardy law continued to develop in England during the seventeenth century,
it began to take root in England's colonies in North America . The Act for the Liberties of the
People in 1639 was the first American Bill of Rights, reaffirming the principle that all
inhabitants of the Colony (except slaves) had the same rights as any natural-born subject of
England. It did not contain express protection against double jeopardy. The first colonial
enactment containing an express guarantee against double jeopardy appeared in 1641 when
the General Court of the Massachusetts Bay Colony enacted the Body of Liberties. This
detailed charter of liberties served as the model for other colonies and was “the most
important . . . forerunner of the federal Bill of Rights.” This code included the double
jeopardy provision contained in the Body of Liberties. It also contained a provision stating
that “every action between parties and parties and proceedings against delinquents in criminal
Causes shall be . . . entered in the rolls of every Court by the Recorder thereof, that such
actions be not afterwards brought again to the vexation of any man.” Connecticut also
adopted a provision against double jeopardy.

The United States of America was formed under the Articles of Confederation, which
did not contain a Bill of Rights or an express protection against double jeopardy. Most state
constitutions at that time did not contain an express guarantee against double jeopardy, but
some provided for the common law of England to remain in force unless altered by statute.
The first state constitution to incorporate an express protection was the New Hampshire
Constitution of 1784, which provided that "No subject shall be liable to be tried, after an
acquittal, for the same crime or offence." Pennsylvania followed suit in 1790, with a new
constitution containing the following double jeopardy clause: "No person shall be twice put
in jeopardy of life or limb."