Double Jeopardy

                The topic of discussion for this Constitution Monday comes from the Fifth Amendment to the U.S. Constitution:  “No person … [shall] be subject for the same offense to be twice put in jeopardy of life or limb.”  This provision simply states that no person can be tried twice for the same offense.

                W. Cleon Skousen explained that a “person is considered to have been put in jeopardy when brought before a court of competent jurisdiction upon an indictment or information in adequate for, and a jury has been impaneled and sworn to try him.  If the jury finds that it does not have sufficient evidence to convict, the trial cannot be postponed while the prosecutor seeks to discover additional evidence.  Since the trial must then proceed to verdict, the defense can move for a directed verdict of not guilty where the prosecution has not established the basic elements of the crime as charged.

                “Of course, a person is not put in jeopardy when a jury fails to agree and the jury has been discharged by the court for that reason.  The accused can therefore be tried again with a new jury.

                “The same is true where a person is convicted but the case is reversed because of some technicality by a higher court.  Once more he may be tried for the same crime but before a different jury.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 705.)

                G. Robert Blakey of The Heritage Foundation provided more information:  “Although the principle can be found in Greek, Roman, and canon law, the prohibition against double jeopardy came into the United States Constitution from English common law.  According to Sir William Blackstone’s Commentaries on the Laws of England, it was a `universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.’  A defendant to a criminal charge could plead either a former conviction or a former acquittal to the same offense and have the charges dismissed.

                “All state constitutions drafted prior to the Bill of Rights contained a double-jeopardy provision.  The principle was so universal that when James Madison proposed on the floor of the First Congress that `No person shall be subject, except in cases of impeachment, to more than one punishment, or trial for the same offence,’ Members rose to object that the language was not strong enough.  Representatives Egbert Benson and Sherman declared that the wording would prevent a new trial for a person who had been improperly convicted.  Others argued that it should stand as drafted, because it was merely `declaratory of the law as it now stood.’  The House defeated an attempt to remove the words `or trial,’ but the Senate revised the language to its present form, which the House accepted.”  (See The Heritage Guide to the Constitution, p. 333.)