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On the closing day of the 2003 session of Parliament, the 800-year-old guarantee against double jeopardy was repealed in England. The promise that a defendant, once acquitted of a crime, will never be retried by the government is enshrined in the Fifth Amendment of our Constitution. Although Justice Benjamin Cardozo once held, in Palko v. Connecticut(1937), that the double jeopardy guarantee of the Fifth Amendment was not so “fundamental” as to be incorporated in the 14th Amendment’s guarantee of due process, the Supreme Court reversed that conclusion decisively three decades later. In Benton v. Maryland(1969), the Court held, in an opinion by Justice Thurgood Marshall, that the guarantee against double jeopardy is “fundamental to the American scheme of justice,” and therefore binding upon the states under the 14th Amendment. That same protection isn’t binding upon English justice any longer. DEFINE ‘NEW’ Under the Criminal Justice Act 2003, defendants who are acquitted of murder, rape, manslaughter, kidnapping, various drug-trafficking offenses, and some 20 other serious crimes may now face retrial if “new and compelling evidence” is brought forward. Even those acquitted prior to the act’s adoption on Nov. 20 can be retried because the act applies ex post facto. Acquittals for conspiring to commit, and for aiding, abetting, or counseling commission of the covered offenses, are also subject to the double jeopardy repeal. The “new and compelling” evidence that triggers a retrial may be tangible or testimonial. To qualify as “compelling,” this evidence must meet a fairly reasonable standard: It has to be “reliable . . . substantial and . . . highly probative of the case.” To qualify as “new,” the standard is quite a bit lower. In fact, the “new” evidence need not really be new at all, or even newly discovered. The act simply states: “Evidence is new if it was not adduced in the proceedings in which the person was acquitted.” Thus, “new” evidence may be evidence that the police or prosecutor possessed or had available to them all along, but failed to adduce before the first jury due to their own oversight or tactical judgment, or to the legal inadmissibility of that evidence under then-prevailing rules of law. So long as England’s Director of Public Prosecutions is satisfied that the “new” evidence is “compelling” and a retrial of the acquitted defendant would be “in the public interest,” the government may ask the Court of Appeal to permit a second trial. If that court finds that “in all the circumstances” a second trial is “in the interests of justice,” the court may grant the prosecution’s application. The reasons for the prosecution’s previous failure or inability to offer the “new” evidence at the defendant’s first trial will be weighed in the balance when the Court of Appeal determines what the “interests of justice” require. But lack of due diligence by police or prosecutors will not be an absolute bar to granting a new trial. Nor will the passage of years, however many, set an absolute bar. Although only one reprosecution will be allowed, there is no statute of limitations on the retrial. MORE OFFENSES Parliament’s abridgement of double jeopardy guarantees under the Criminal Justice Act is far more sweeping than the original Law Commission recommendation that gave rise to this legislative action. The Law Commission — a statutory body charged with proposing legal reforms to Parliament — had proposed the repeal of the double jeopardy guarantee for murder cases only. (For more background on the commission’s consideration and recommendation, which grew out of acquittals in a celebrated murder case, see my earlier Legal Timescommentary, ” Let’s Try Him Again,” April 7, 2003, Page 44.) In the omnibus Criminal Justice Bill, introduced in the House of Commons in November 2002, Prime Minister Tony Blair’s government extended the proposed double jeopardy repeal to numerous other serious offenses besides murder, and added the provision making the repeal retroactive. During the course of the bill’s consideration by Parliament, it was amended, at the government’s behest, to bring many more acquitted drug offenders within its scope, and to water down the requirements for evidence to be treated as “new.” The original definition of new evidence set a higher bar: “Evidence is new if it was not available or known to an officer or prosecutor at or before the time of the acquittal.” In debate in the House of Lords, the attorney general, Lord Goldsmith, justified the relaxed definition — “new” evidence is evidence “not adduced” at the prior trial — as “straightforward, factual and objective.” That it certainly is. But, as Lord Neill of Bladen pointed out: “It is a lower test than is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement here.” THEY MEEKLY AGREED Resistance in Parliament to repeal of the venerable double jeopardy guarantee was surprisingly limited. The argument that repeal advanced the protection of victims’ rights carried the day, overcoming civil liberties concerns that had underlain the guarantee as a fundamental right of Englishmen for eight centuries. Lord Neill said that he was “surprised at the meekness with which the [House of Lords] is accepting the situation.” He found it “astonishing” that no member of the Lords had offered an amendment to strike the double jeopardy repeal from the Criminal Justice Bill: “A very grave and serious principle is involved. . . . If acquitted, the acquittal should stand for all time; it should not be a provisional acquittal. . . . My prediction is that there will be hounding in the media of people who are acquitted in sensational, high-profile cases. The acquittal will not be final, and it will be up to anybody, including the press, to see what additional evidence they can rootle out so that there can be a second prosecution of the person who has been acquitted.” The attorney general responded: “The noble lord . . . said that it is a centuries-old rule. Yes, it is. . . . [T]hat does not necessarily mean that it is right for all time.” He added, “I recognize that the provision carries a price, but it is a price worth paying, because of the justice that it will bring about.” Baroness Anelay of St. Johns, speaking for Her Majesty’s Opposition, said: “Our approach to this controversial matter is essentially pragmatic. We accept that many people regard it as offensive in the case of the most serious crimes, where a matter of public importance is at stake, that a person who is acquitted because there is, at that time, insufficient evidence cannot later be tried when compelling evidence has become available.” In short, the government had introduced a politically popular proposal, and Her Majesty’s Opposition deemed it inexpedient to fight. The Blair government has a large Labor Party majority in the House of Commons, so passage of the government’s bills is usually assured there. The House of Lords, where Labor has no majority, has the power to block passage of bills adopted by the Commons and attempt to force some kind of compromise. (If no compromise is reached, a determined Commons can ultimately compel passage of the bill.) Nonetheless, the House of Lords did not vote against the double jeopardy repeal or even reject its ex post facto application. By contrast, on a different part of the Criminal Justice Bill that would have allowed judges to deny defendants the right to a jury trial in complex criminal fraud cases, the Lords majority stood firmly in support of preserving the right to trial by jury, and forced the government to back down — at least in that session of Parliament. Viewed from the American perspective, the English have thus stood by our Sixth Amendment right to trial jury, but abandoned our Fifth Amendment guarantee that a jury’s verdict is final and binding on the government. Had O.J. Simpson been acquitted in England rather than in the United States, one can easily envision demands for a retrial today. WHAT IS FUNDAMENTAL? In Benton v. Maryland, the Supreme Court observed: “The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before our Nation’s independence. . . . [I]t was carried into the jurisprudence of this country through the medium of Blackstone, who codified the doctrine in his Commentaries. . . . Like the right to trial by jury, it is clearly ‘fundamental to the American scheme of justice.’ ” But apparently it is no longer considered fundamental to the English scheme of justice. The ultimate arbiter of these two views of double jeopardy protection may turn out to be the European Court of Human Rights. A defendant retried and convicted — especially one first acquitted before 2003 — may seek to challenge the conviction there as violating the guarantee to a “fair” trial under European human rights law. Home Secretary David Blunkett has certified that, in his opinion, the provisions of the Criminal Justice Act are compatible with the requirements of the European Convention on Human Rights (which England has adopted). And Justice Cardozo had opined in Palkothat “Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without” our Fifth Amendment guarantees. But Bentonand Blackstone have described the double jeopardy protection as a “universal maxim.” Will the European Court of Human Rights someday agree? Robert L. Weinberg, a former president of the D.C. Bar, is a retired founding partner of Williams & Connolly, where he practiced criminal defense law for 35 years. He is an adjunct professor teaching criminal procedure at George Washington University Law School and a visiting lecturer in criminal procedure at the University of Virginia School of Law.

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