Dispatches From the Moderate Left

Thursday, September 07, 2006

Triple Jeopardy?

I've never seen it, but I understand that the plot of the movie Double Jeopardy is something like this. Woman is framed for the murder of her husband. The framing is successful and she goes to jail. She later discovers that not only is she not guilty of the murder, she could not have been guilty because her husband is still alive and responsible for her being framed. Armed with her extensive knowledge of double jeopardy law she goes on a manhunt to kill her husband in revenge when she gets out of prison, safe in the knowledge that she can’t be prosecuted for the ‘same’ murder twice thanks to the double jeopardy rule.

If this were my only exposure to the rule, I would think it was pretty stupid. What’s the point of a legal rule which gives people leeway to commit crimes with no fear of being punished? Thankfully, as with so much popular understanding of legal theory the protagonist’s understanding of double jeopardy law in that movie is completely wrong. Double jeopardy only prohibits a person being tried for the same crime twice (The term ‘double jeopardy’ actually encompasses four distinct doctrines, but this is the most important one. If you really care about the other ones, feel free to ask). On no reading of the law could the murder which didn’t take place and the murder which the protagonist intends to commit be seen as the same crime. They would happen in different places and circumstances and at completely different times. Not to mention the fact that one would actually exist while the other wouldn't (ok, it's a film so neither would, but you know what I mean). What would happen, if the woman had ended up murdering the husband for real, is that she would receive an acquittal for the first crime which she didn’t commit and then be promptly charged for the new murder.

The double jeopardy rule is potentially topical in Australia at the moment. As far as I can see the biggest obstacle to the re-trial of Jack Thomas, who recently had his conviction for terrorism-related offences quashed by the Victorian Supreme court, is that it would be a violation of the Double Jeopardy rule. Thomas’ lawyer, unsurprisingly, seems to be aware of this and used the language of double jeopardy in his initial submissions opposing a retrial - ‘If ever a case called for finality, this one does.’ Sounds like a good enough excuse for me to run over the case for the double jeopardy rule.

The single most persuasive reason for the double jeopardy rule, in my opinion, is that it discourages sloppy policing. If the State could simply turn around and re-prosecute an acquitted person there would be no incentive for the police (or prosecutors) to do a decent job. Even if you limited this to circumstances where ‘new information’ came up it would still discourage a complete searching out of all available information. It might even encourage police to deliberately not expend resources pursuing certain leads, because if they get a conviction without doing so then they’ve saved themselves the resources and if they don’t get a conviction, they can then investigate that area and find out ‘new information’ necessary for a re-trial. Given the mental and physical strain involved in the trial process for witnesses, families/related parties and the accused themselves, as well as the cost to society of maintaining courts and prosecutors, anything which encourages police to get it right the first time is a good thing.

There’s a few other ‘practical’ justifications for the rule. The further from the events themselves that a trial occurs, the less reliable the existing evidence becomes. Physical evidence degrades, gets contaminated or gets lost and witness testimony becomes based less and less on memory and more and more on external sources. So if a new trial could be called every time some new piece of evidence came to light, the trial process would have an increasingly lower chance it has of reaching the correct factual outcome.

But practical justifications only get you so far. They provide the reason for having a general rule, but not for having extremely limited scope for granting exceptions to it. Most of the more abstract justifications for double jeopardy rely on an axiom that underpins Common Law criminal law tradition – ‘ it is better that ten guilty persons escape than that one innocent person suffer’. I’m not going to go into an extended defence of that maxim here, but the two chief justifications for it are (1) the vastly unequal power relationship and access to forensic/inquisitorial resources between the individual and the state in a criminal trial, (2) the asymmetry of harm done to an individual wrongly convicted compared to the harm to society of allowing a guilty person to be acquitted. So if you think of an innocent person who is wrongly accused of a crime, double jeopardy is an important safeguard in that it encourages police to only bring cases founded on solid evidence (because they don’t get a second bite at the cherry if they lose a weak case), it reduces the inevitable stigma associated with being constantly dragged before courts for the same crime and it eliminates the ability of the state to keep retrying the same issue time and time again until they find a sympathetic jury.

There’s other more abstract justifications for the rule. Double jeopardy gives accused criminals (whether guilty or innocent) finality in that the State isn’t permitted to hang a sword of Damocles over their heads for the rest of their lives. Relatedly (not a word), it greatly hampers the ability of the State to use perverse prosecution, with the associated social stigma, as a political weapon against innocent but unpopular defendants. Double jeopardy also upholds juries’ traditional right to give ‘peverse’, against the fact or mercy verdicts which a the citizens’ final line of defence against truly obscene laws.

The reason for the title of this post is that England essentially abolished Double Jeopardy in a 2003 Act and replaced it with ‘triple jeopardy’, in that individuals can be tried for the same serious time twice provided ‘new and compelling evidence’ and public interests tests are satisfied. They still can’t be tried a third time, though. I think this aspect of this Act (and many others) goes much too far. On the specifics of the law, the presumption of innocence is essentially neutered if a jury is looking at a person whom a court of appeal has determined there to be ‘compelling’ evidence of guilt as they must do so for a person on their second trial. Further, the arguments relating to sloppy police work seem particularly applicable to the English situation, where police corruption and ineptitude in the prosecution of crimes (eg. the murder of Stephen Lawrence) somehow lead to calls for the abolishment of a rule which gives police strong incentives to do their job right the first time.

I do actually support some tinkering at the edges of the rule, especially in regards to trials where the accused is found to have committed a perversion of justice type offence and trials for collateral crimes such as perjury. But I’m glad that double jeopardy isn’t seriously in jeopardy in Australia, at the moment. It isn’t one of our two and a half (weak) constitutional rights, however, so it could be overturned at any time by a government determined to do so. There was some indication that it would be neutered following public outcry at the Carroll decision (where the High Court took a ridiculously strict position on a collateral double jeopardy rule that NZ, UK and, previously, Queensland courts had opposed on straight common law grounds), but it seems the Labor Attorney generals managed to restrain their authoritarian impulses in this instance, which has to be something of a first.


  • that movie is for Ashley Judd fans only. Though the premise wasn't a complete no-brainer, as a layperson might reasonably believe that killing the same person amounts to the same crime. And she had been convicted rather than acquitted (unavoidably, from a dramatic viewpoint).

    on the subject of the Constitution, there was a piece in this week's Lawyers' Weekly arguing that the document's obsolete precisely because there's too little parliamentary control of it. The writer argues that the general public aren't inclined or equipped for constitutional maintenance, and we should adopt a US-style amendment system with the ballotting confined to legislators.

    What he leaves out is that many state constitutions in the US are changed by popular vote. State 'initiatives' and 'propositions' over there are a real case of democracy in action (in all its glory and ugliness). Quite unlike anything in Australian political culture.

    By Blogger John Lee, at 8:29 PM  

  • Hang on, sao her brilliant plan was to serve many years in prison as punishment for a murder she didn't commit, and then go and commit a new one? So her brilliant plan is to get the punishment part over and done with first?

    I... see.

    By Blogger Jeremy, at 10:15 PM  

  • Interesting post - and it's as close to a rational explanation as I've come across. Not sure that I agree with all the justification based on needing to protect people from the state though (the "axiom" you quoted is an interesting one, but as a part-time mathematician I have to say that reexamining and reevaluating axioms is often a good idea). I know the apparent need to protect people from their own government is something a lot of people are very keen on (Second Amendment, etc.), and of course the fact that I'm questioning that need on a vaguely leftist site will get me labeled as a "fascist" of some sort or another (:P) (and yes, I remember you did use exactly that word last week...) - but I see the need to protect society from its miscreants as being just as important as the individual rights of said miscreants. Sure the effect on society as a whole may, as you state, be small - but what about the effect on the victims of the crimes committed by the responsible-for-the-offense-but-acquitted person upon his re-release into society? I disagree with the 1:10 ratio - I'd put it more at 1:2 or maybe even 1:1, which to me is enough to question the value of the Double Jeopardy principle.

    Also, particularly in the Thomas case, it's not as if he was actually acquitted - the conviction was quashed on a procedural (yes, and as you pointed out at my blog, serious - but nonetheless a procedural) basis rather than because he was proven not to have done what he was accused of. I think the UK Triple Jeopardy laws are a good idea - they seem to provide a better balance between the two sides than we get at the moment. So - interesting post, but (as is often the case), I don't know that I agree with all of it. Thanks for the explanation though.

    By Blogger John Provis, at 10:53 PM  

  • I must've done a really unclear summary because both lefty and JohnL seemed to have misunderstood me. She was framed (not her plan), in that someone else falsely accused her and this framing ended up being successful in that she was convicted (not acquitted) for the murder.

    And, JohnP, what was the context of my fascist comment? I'm sure I was joking :). And if you have access to Lexis through the uni I highly recommend a paper by Alexander Volokh, "Aside: n Guilty Men" (1997) 146 University of Pennsylvania Law Review 17 for a humorous trace of the 1:X ratio throughout history.

    As for double jeopardy's applicability to the Thomas situation... I'll post on that if/when the court decides. But I'll just note at this stage that courts tend not to give themselves the power to arbitrarily overrule longstanding legal doctrines because it seems like a good idea in a particular case. They'll usually only do so if there is clear Statutory guidence/instruction.

    By Blogger Jeremy, at 11:02 PM  

  • PS. Lefty, if you see this, is a retrial in Thomas' circumstances at all likely? I'm only familiar with Vic criminal procedure at a general level, but it seems exceptionally unlikely from what I understand. But I might be missing something fairly fundamental... is it at all common for a conviction to be quashed without an acquittal being recorded in its place?

    By Blogger Jeremy, at 11:18 PM  

  • Yes, you were joking... and I'll chase up that article, sounds interesting.

    By Blogger John Provis, at 12:27 PM  

  • For what it's worth, I came across this article today, showing that the British system seems to be working in the way I'd like to see these sorts of laws work. (Not a very well written article, but it gets to the point eventually...)

    By Blogger John Provis, at 2:02 PM  

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