Double Jeopardy Clause Of The Fifth Amendment example essay topic

The Fifth Amendment provides for the rights of accused persons. The right against double jeopardy will be the focus of my paper and presentation. Double jeopardy can be a difficult subject for the Supreme Court and the inferior courts, not to mention to the American people. Through my extensive research, I am still not totally definitive on this clause of the Bill of Rights.

I will, to the best of my ability, try to explain it. Our book, Democracy Under Pressure, defines double jeopardy as "more than one prosecution for the same offense; prohibited by the Constitution". (Cummings 109) Basically, the Fifth Amendment of the Constitution prohibits a person from standing trial twice for the same crime. The Fifth Amendment provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb".

(Cummings A 8) Jeopardy refers to the danger of punishment applied to an individual brought to trial before a court. Jeopardy attaches once a jury has been sworn in or when the first witness takes the stand. Jeopardy also attaches to any plea of guilty, even if it is later withdrawn. Jeopardy does not attach to any proceedings resulting in no prosecution, mistrial, hung jury, or termination of the proceedings for any other reason. The Supreme Court has decided that double jeopardy is a constitutional right that can be waived. Where there is an opportunity to oppose an action and the defendant decides to forego that right, then there is no successive prosecution for the same offense.

In other words, if the defendant is unaware or their attorney does not press the issue of double jeopardy, then its not the responsibility of the Court to impose it. Basically, those who hesitate are lost. A plea of double jeopardy is a valid defense to a felony arraignment. Also, this plea must be entered before the jury is in place and sworn in on a second prosecution.

If 2 this is not done in a timely manner, then it is up to the Court's discretion and any subsequent dismissal of the case or discharge of the jury must be treated as an acquittal. The double jeopardy clause is one of the least understood and, in recent years, one of the most litigated provisions of the Bill of Rights. Chief Justice William Rehnquist has said, "the decisional law in the area of double jeopardy is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator". ( . faculty 1) Since it is such a difficult area for the Supreme Court justices, it is most likely indecipherable for the common American people. I will attempt to explain what I have discerned from my research as best I can. Double jeopardy refers to the danger of punishment a second time for an offense, or a greater or lesser-included crime.

The double jeopardy clause protects against "three distinct abuses (1.) a second prosecution for the same offense after conviction; (2.) a second prosecution for the same offense after acquittal; and; (3.) multiple punishments for the same offense". ( . lectlaw 1) This clause of the Constitution was designed to protect an individual from being forced to defend them self against repeated attempts to cause one or more punishments for the same offense. The concept of double jeopardy first emerged in the year 533 in the Digest of Justinian. The notion of double jeopardy was expressed then, as "The governor should not permit the same person to be tried again accused of a crime of which he has already been acquitted". ( . faculty 3) Therefore, the founding fathers were not the first to conceive of the idea of double jeopardy. In fact, nearly 700 years prior to the adoption of the Bill of Rights to the U.S. 3 Constitution, English common law contained a similar idea of double jeopardy. Under King Henry I (1100-1135), the need for double jeopardy protection was crucial. The semantics of the Fifth Amendment, "in jeopardy of life or limb", are derived from a literal source; punishment after a second conviction for almost any offense was death or mutilation during King Henry's reign.

Today, double jeopardy in the United States is a more fundamental right than it Was, or is, in England; this may be traced back to early colonial times. The Massachusetts Bay Colony extended this clause to all criminal and civil proceedings. Two English law commentators, Sir Edward Coke and Sir William Blackstone, greatly influenced colonial American jurisprudence. Coke and Blackstone helped double jeopardy assume its present form in our legal system, but the protection was much narrower then.

Under the influence of Coke and Blackstone, double jeopardy came to mean, a defendant at trial could appeal former conviction or formal acquittal as a special plea, in order to bar further prosecution. Now that we have a little history on the matter, I will attempt to explain "same crime" as it pertains to double jeopardy. For double jeopardy purposes, here are some simple examples: an acquittal or conviction for murder will bar any prosecutions for manslaughter if based on the same facts, an acquittal or conviction for larceny-theft will bar any prosecution for robbery if based on the same facts, an acquittal or conviction for burglary will bar any prosecution for robbery unless there are distinct elements in one crime that are not in the other, and an acquittal or conviction for battery will not bar any later prosecution for murder if the victim later dies as a result of the injuries. The double 4 jeopardy clause was adopted to avoid political pressures for re-prosecution. The challenge for the Courts is determining what constitutes "same crime". That is to say, that "same act" upon which the first prosecution was based.

"Under Blockburger vs. United States, if an act violates two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional that the other does not". (web 1) I determine this to mean that any double jeopardy analysis must begin with a determination of whether the elements underlying both prosecutions are the same. The double jeopardy test that resulted form this case is the Blockburger Test or the "same elements test". This test focuses on the whether each offense contains an element that is not contained in the other. If such an element does not exist, then they are the same offense and double jeopardy bars additional punishment or prosecution. This same evidence test is now favored over the same transaction and same conduct tests. For double jeopardy purposes, a conspiracy to commit a crime is separate crime from the crime itself.

In Whalen vs. United States, the Court determined that a defendant could not be separately punished for rape and for killing the same victim, because each statute requires proof of fact that the other does not. At that there was no indication in the statutes and no legislative history that Congress wanted the separate offenses punished, the defendant plead guilty to the sole charge of murder. The double jeopardy clause of our Constitution was binding only against the federal government during most of its existence. However, the Courts decided that the state and federal governments are separate sovereigns; therefore, prosecutions on the state 5 and federal levels are not in violation of the double jeopardy clause and its ban on successive prosecutions. It was decided in Benton vs. Maryland, the same standards apply for both the state and federal governments.

"Nothing in double jeopardy law prohibits simultaneous prosecutions for the same offense in the courts of the federal government, criminal courts of another state, or civil courts of the same state". ( . faculty 2) The fact that double jeopardy protection does not apply to the laws of different jurisdictions is referred to as the dual sovereignty doctrine. This doctrine allows for a retrial after an acquittal, when a separate sovereign brings new charges against the defendant. To clarify, the Supreme Court has repeatedly held that the criminal actions brought by the different sovereigns are not the "same offense"; therefore, it does not violate the double jeopardy clause of the Fifth Amendment. An example of the Court's use of the dual sovereignty doctrine is Heath vs. Alabama. In this case, the government allowed the interests of justice to outweigh double jeopardy considerations.

Heath plead guilty to murder in Georgia, in exchange for a life sentence. He was later tried and convicted in Alabama for the same murder, in which he was sentenced to death. It stands to reason that, even if the possibility that a defendant will face a death sentence in a second prosecution, it is still not sufficient enough to trigger the double jeopardy clause of the Constitution. Double prosecutions, such as this, have proven to be instrumental in securing government interests while concurrently protecting society from such evildoers.

There was an exception to the dual sovereignty doctrine in Bartk us vs. Illinois. The importance of this ruling is that, if one sovereign acts as a tool for another, it violates 6 double jeopardy. This means that, "if the federal prosecutors were mere tools of the state or that the federal proceedings were a sham carried out at the behest of the state", ( . lectlaw 1) then it violates the Fifth Amendment right against double jeopardy. Until now, I had no idea how myriad the notion of double jeopardy was; it really impacts many facets of our legal system, not to mention the volume of past, present, and future court cases. During my research, I discovered some controversial information concerning California's Three-Strike Law. This law allows nonviolent and minor felonies to be counted as a third strike.

Basically, people who were convicted of "strikes" in the past, can now be imprisoned in a maximum-security prison for 25 years to life, for such minor offenses as petty theft and possession of narcotics. The appropriate question here, I believe, is why should these people who have served their time and paid their debt to society, be prosecuted more sternly based on their past? Does this not further imply punishment for past offenses? Should this be included in our protection against double jeopardy? Don't get me wrong; I believe this should definitely affect violent offenders, but is this law in violation of our Fifth Amendment rights? Anyway, I felt this topic was an interesting one.

I'm sure this is not the last time I will be hearing about this issue. In my personal opinion, I do not believe that the framers of the Constitution ever intended for the obtrusive idea of dual sovereignty. This doctrine originated during prohibition, another faux pas on behalf of our government. Not to mention, the Constitution and its first ten amendments restricted the federal government from enacting these types of laws that overlap the power of the states'.

Nevertheless, our government and our Supreme Court exercise the power and we must yield to it. 7 In closing, I want to discuss the importance that the double jeopardy clause has on individuals and society alike. In my opinion, this short phrase stuck in the middle of the Fifth Amendment has affects on individuals, as well as society. I believe that there are both benefits and detriments to the individual, concerning the double jeopardy clause. This clause protects the individual from additional prosecutions for an offense, yet conversely, it now allows for successive or simultaneous prosecutions at both the state and local levels. I cannot help but find this notion contradictory in essence.

As for society, the double jeopardy clause protects Americans from the evils of the deviants in our culture..