Where there is a beginning, there must be an ending. Like life, all proceedings, whether judicial, quasi-judicial or administrative must have a starting point and ending point. In a jury trial, jeopardy begins or attaches when the selected jury is sworn; and attaches in a bench trial, when the first witness is sworn. Eric J. Smith defines double jeopardy as being placed more than once in danger of being convicted and sentenced for the same offense, being tried twice for the same offense. A criminal case however, may be re-tried without violating the rule on double jeopardy if a judge declares a mistrial (“Legal definitions”).
. In criminal case, when the accused is either acquitted (autre fois acquit), or convicted (autre fois convict), or the case against him is dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a valid complaint or information or other formal charges sufficient in form and substance to sustain a conviction and after the accused has pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the same offense.
Double jeopardy can be invoked to defeat a second prosecution for the same offense (Aguirre, A. , l995). Double jeopardy is addressed exclusively to criminal offense. It is a constitutional right available to avoid a second jeopardy involving the same offense. The second offense upon which an accused is indicted must be identical with the first offense. There is identity between the two offenses when the evidence to support a conviction for one would be sufficient to warrant a conviction for the other.
This is known as the “same evidence” rule. Thus, an act resulting in multiplicity of crimes is not covered by the rule on double jeopardy (l995). Double jeopardy is one of the most challenged and longest standing rule in the English law which dates back in the 12th century. From it, other legal systems have developed. The U. S. Constitution has adopted the rule in its Fifth Amendment (Deanne, A. , 2003). It is a rule of finality, the laudable purpose of which is to put to rest the effects of the first prosecution.
Without the safeguard of this rule established in favor of the accused, his fortune, safety and peace of mind would be entirely at the mercy of the complaining witness, who might repeat his accusation as often as dismissed by the court and whenever he might see fit, subject to no other limitation or restriction than his own will and pleasure. The accused would never be free from the cruel and constant menace of a never-ending charge, which the malice of the complaining witness might hold indefinitely suspended over his head.
Since the advent of technology particularly with the use of DNA evidence, constant debates on the issue of the abolition of double jeopardy rule have ensued. There are pros and cons with respect to the abolition of the rule on double jeopardy. Guilty people are not punished as argued by pro advocates. Further, they move for the reassessment of the justice system, which they believe, must be free to allow punishment of guilty persons for the crimes they have committed.
They argued that the offense has not ended despite the passage of time; that guilt is the ideal criterion to charge a person whether or not he has had a previous trial for the same offense; that injustices are not perpetrated on the victims as on the accused (2003). Those who are against the abolition of the rule however, argue on the other hand that the double jeopardy rule does not only protect those “guilty persons” but protects everyone from the hazards of constant torment from the state.
Innocent people charged and acquitted will not be at peace with the acquittal where there is no assurance that the case has finally ended; that another prosecution might happen in the future. They argue that for a justice system to be working, it must provide an indubitably clear termination of a case. The meaning of rule of law will be less significant if it exist in a never-ending state of expected countermand. The abolition of the rule would result in the deterioration of the investigatory and prosecution processes because of an assurance that a second trial is available.
There will be no end to a fishing expedition of evidence (Deanne, A. , 2003). The rule however was not without any reformation. If there is compelling new evidence, a murder case could be retried, thus, resulting in the abolition of the double jeopardy rule on murder cases. The rule on double jeopardy not only enhances the ability of the state to prosecute and protects the integrity of final judgments but also protects the accused from the stresses and burdens of multiple judicial prosecutions. (“Double jeopardy”). References Aguirre, A. (l995).
Postulates in Constitutional Law II. 1995 Edition. Lex Scripta Suprema Publishers, Inc. , Manila, Philippines Deanne, Alex (2003). Double jeopardy rule, abolition of. Retrieved on November 7, 2008 from http://www. idebate. org/debatabase/topic_details. php? topicID=213 Double Jeopardy. U. S. Supreme Court Center. Retrieved on November 6, 2008 from http://supreme. justia. com/constitution/amendment-05/02-double-jeopardy. html Smith, Eric J. Legal definitions. Retrieved on November 5, 2008 from http://www. macombcountymi. gov/PROSECUTORSOFFICE/define. htm#D