Double Jeopardy

Ancient civilizations relied on the blood feud to provide justice when one person killed another—the relatives of a slain person had a duty to avenge the death. While the blood feud manifested a rough "eye-for-an-eye" retributive justice, it could, in theory, lead to an endless series of killings as each death was avenged. The Greek playwright Aeschylus dramatized a cycle of blood feud revenge in The Oresteian Trilogy, which ended with the Greek gods deciding that a trial is a better way to achieve justice. Part of the reason to replace the blood feud with a trial is to permit the cycle of revenge to end, to provide a final outcome to a dispute, and to create repose in the litigants. But to protect the finality of outcomes, there must exist a principle forbidding a retrial of the same case or the same issue.

A double jeopardy principle has been part of Western legal systems for thousands of years. The Code of Hammurabi, for example, in the nineteenth century B.C.E. sought to prohibit judges from changing judgments (law 15). The Greek philosopher Demosthenes said in 355 B.C.E. that the "laws forbid the same man to be tried twice on the same issue." In the Roman Republic, an acquittal could not be appealed. St. Jerome in A.D. 391 interpreted a passage from the Old Testament to mean that not even God judges twice for the same act.

The English common law principle that there should be one punishment for one crime first manifested itself during the confrontation between King Henry II and St. Thomas Becket that occurred between 1164 and 1170. Henry, the great-grandson of William the Conqueror, enacted a law that required punishment in the king's court of clergy who had already been punished in the church courts. In opposing this law, Becket relied on St. Jerome's principle forbidding more than one judgment for the same act. After four of Henry's knights killed Becket, the pope condemned Henry's provisions permitting the double punishment of clergy. Henry relented and today, over eight hundred years later, courts still condemn double punishment.

The evolution of double jeopardy law from the twelfth century to today cannot be easily summarized, but the great English commentator Sir William Blackstone could state confidently in 1765 that there was a "universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." This "universal maxim" led directly to the Fifth Amendment double jeopardy clause, which is strikingly similar to Blackstone's statement of the common law maxim. The Fifth Amendment provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."

There are two difficult concepts embedded in the arcane language of the double jeopardy clause—"same offense" and "twice in jeopardy." "Same offense" could be read literally to be the very same statutory offense—for example, the premeditated murder of V is the same offense as the premeditated murder of V but would not be the same offense as manslaughter of V even though manslaughter is a lesser form of homicide. From at least the seventeenth century, however, courts and commentators understood "same offense" in a broader way. Unfortunately, the precise outlines of this broader meaning have long been elusive. In part this is because "same offense" issues were not very troubling in Blackstone's day. The common law recognized a relatively small number of criminal offenses and, aside from homicide, the offense definitions rarely overlapped.

The "twice in jeopardy" issue was also easy in the eighteenth century. If a defendant was acquitted or convicted of murder, he could not again be tried for that murder. Unlike the eighteenth-century English system, modern criminal procedure permits the judge sometimes to dismiss cases before a verdict is rendered—the jury might not reach the required vote (almost all jurisdictions require unanimous verdicts in criminal cases), or the case might be dismissed during the trial for some reason. Errors that could justify dismissing the case after trial begins include the failure of the prosecution's key witness to appear, a remark made by the prosecutor or defense counsel that prejudices the jury, and a mistake made in the indictment that cannot be corrected. Most dismissals during a trial are called "mistrials."