Academic journal article Albany Law Review

The Double Jeopardy Clause, Newly Discovered Evidence, and an "Unofficial" Exception to Double Jeopardy: A Comparative International Perspective

Academic journal article Albany Law Review

The Double Jeopardy Clause, Newly Discovered Evidence, and an "Unofficial" Exception to Double Jeopardy: A Comparative International Perspective

Article excerpt


It is a common hypothetical posed to law students in criminal procedure classes: if a prosecutor comes across compelling evidence proving a person guilty of a crime of which they have already been acquitted, what can that prosecutor do? The Double Jeopardy Clause to the U.S. Constitution makes the answer patently clear: "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." (1) However, perhaps even more so in recent years, the criminal justice systems in the United States and abroad have struggled with the concrete notion that finality and protection of individual rights must rule the day. (2) The United Kingdom's history regarding double jeopardy prohibition started out much the same way, (3) but in 2003, the parliament passed the Criminal Justice Act, which forever changed the way double jeopardy was applied in the United Kingdom. (4) Under the Act, for certain, specified crimes, a prosecutor could appeal an acquittal and retry a defendant on the grounds that newly discovered evidence incriminated him. (5)

The United States has remained steadfast in its prohibition of double jeopardy. (6) The U.S. Supreme Court struck down a Maryland statute that allowed prosecutors to appeal acquittals, so even a federal statute allowing re-trial seems unlikely. (7) Further, the repeal of the Fifth Amendment seems highly unlikely. (8) However, research about actors involved in the criminal justice system demonstrates that attempts to curb prosecutorial discretion does not actually get rid of the discretion; it just shifts it to another level in the system. (9)

The question in this article is whether, with respect to double jeopardy, in the absence of an express statute or constitutional provision permitting re-trials for acquitted defendants, prosecutors could "unofficially" use their discretion to form a loophole to the prohibition against double jeopardy using perjury prosecutions and subsequent civil and forfeiture proceedings used against defendants acquitted of the original charge. Although none of the United States case examples involve defendants who were "re-tried" for perjury or in civil court after authorities found new evidence against them, whether this repackaging of essentially criminal re-trials as civil cases is done with that end in mind (finding a loophole to double jeopardy) is the question that this article confronts. While it is easy to attack such an outcome as academically dishonest and against both the letter and the spirit of the Double Jeopardy Clause, it is difficult to ignore a civilized nation across the ocean such as the United Kingdom being able to retry the "acquitted but actually guilty" without having to resort to such measures. (10)

In Part II, I will discuss the history of double jeopardy in the United Kingdom and how the murder of Stephen Lawrence spawned an investigative report to overturn the preexisting prohibition against double jeopardy, culminating in its first application against William Dunlop for the murder of Julie Hogg, and most recently, against Stephen Lawrence's killers. (11) Part III examines the history of double jeopardy in the United States, and examines whether concurrent federal and state prosecutions, perjury prosecutions, and civil trials or forfeiture hearings would provide an ample alternative to direct criminal prosecutions with which U.K. prosecutors may proceed. (12) Finally, Part IV concludes that each of these alternatives is insufficient to cover the "wrongfully acquitted" in any meaningful way, and more importantly, are an end run around a historically valuable constitutional right enjoyed by defendants. (13)


While sources differ on the precise beginning of the prohibition against double jeopardy, it can be said with confidence that it has existed for at least five hundred years. (14) In the United Kingdom, while "[t]he double jeopardy doctrine appeared in cases as early as 1589," and predates case law on the issue by almost two centuries, (15) King Henry VIII passed a law allowing him to try defendants in England who committed offenses in Wales. …

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