The ancient common rule prohibition on multiple trials, known as the double jeopardy, is a procedural protection that forbids the prosecution of an offender for an unlawful offence. The offender, in this case, may have been previously acquitted or convicted following a trial on the merits by a legal system of a competent criminal jurisdiction. Double jeopardy arises when there is a prior criminal trial. In many states of the globe, the protection against double jeopardy is a constitutional right while in others, the statute law provides for the protection. Statutory modification, the basis of the principle in England, is the framework for reforms in several common law jurisdictions that allow post-acquittal trials in limited situations (Corns, 2003).
This paper explores the policy issues for and against this protection rule reform, statutory modification of the principle in England, and procedural safeguards for post-acquittal retrials. Some of the issues that emerge in the Irish criminal justice process do not portray any uniqueness concerning the subject matter; therefore, it is important to contrast and compare advancements in the various jurisdictions. The evaluations provided, and the solutions suggested by the assembly and courts in England maintain their own interest, and they may often offer solutions to matters that need solutions in the Irish criminal justice process (Coffey, 2003).
Policy Considerations Underlying the principle against Double Jeopardy
Proposers of the reforms on double jeopardy state that retrials would constitute a significant encroachment on the fundamental process rights of the accused. In many instances, an innocent individual may lack resources to fight a second charge. Knowing that a second proceeding is likely to happen, the innocent individual may plead guilty at the first trial. In addition, if the accused opts to fight in the second charge, he is predisposed to lose compared to the first trial because of disclosed defense at the previous trial. Primarily, this will arise as the prosecutor may study the transcript; thereby not apparent inadequacies in the evidence used in the second trial. Similarly, in Green v. United States, Black J. stated (Coffey, 2013),
"The underlying view, one central in the Anglo-American systems of jurisprudence is the state together with all its powers, and resources are forbidden to convict an individual for an offence subjecting them to shame, embarrassment and compelling them to live in a continuous condition of anxiety, insecurity, and enhancing the possibility that although they are innocent, the state may find them guilty."
Increased Risk of Wrongful Conviction
Post-acquittal retrials augment the threat of wrongful conviction of justice in instances where there is a weak case offered by the prosecution. Most of the defendants, having already endured a lengthy and demanding trial, may lack the resources needed to stand strong and defend a retrial. In such a scenario, the prosecution will have a tactical merit at the retrial because the defense case is apparent, and the prosecution strategies are modifiable during the retrial. In addition, in the same scenario, there is a high probability of the jury convicting the offender unfairly (Parkinson, 2003).
The existing advantages will make it easier for the discharge the burden of evidence, and highlights the need for the judicial awareness when considering applications based on statutory exclusions to the principle. Therefore, there is a need to discourage post-acquittal retrials unless there is fresh and compelling proof. This is because they are significant challenges to applications for retrials as they decrease the threat of wrongful convictions when hearing the matter for the second time. In addition, undesirable pre-trial publicity weakens the impartiality of the trial process whereby the jury may rely on the undesirable pre-trial publicity against the accused through print media, electronic media and the internet.
This kind of publicity associated with a retrial, based on compelling evidence of guilt might lead to unfair retrial in the trial process. This jeopardizes the defendant's fundamental right during the retrial process. This calls for the court to consider the undesirable pre-trial publicity, and whether it is appropriate for the criminal trial to consider until the effects regarding the undesirable publicity have faded from the memories of prospective jurors (Ruva, McEvoy and Bryant, 2007). The necessity for reporting restrictions is significant in the case of a retrial following the quashing of an acquittal as outlined in the statutory exceptions to the prohibition on double jeopardy.
Finality in Criminal Litigation
Criminal litigation is an essential element in the criminal justice process because it helps interested parties to move on, resume their activities and develop new legal relationships ensuring the court is not influenced by inadequate verdicts. Traditionally, people view the finality for acquittals with importance and the acquitted have the opportunity to move on with certainty of no further prosecutions for a similar offence. This will help offenders to reduce the uncertainty and anxiety of a possible retrial for a similar offence in the future. However, the society and victims have a competing concern to guarantee that the result of the criminal process is accurate (Coffey, 2003).
Finality is not inducing in an event of convictions, which may remain open to challenge notwithstanding the drift of time where there is no adequate evidence that an injustice occurs. To overturn a conviction, there is a need for very strong evidence to show that the conviction was unfair in law, and constituted of injustices. In cases where the challenge to a conviction is strong, the offender's right to liberty could take effect over the significance attached to stability of verdicts in trials. Into the bargain, if criminals, in this case convicted criminals, can seek justice after conviction, then they should anticipate the prospect of a post-acquittal retrial if compelling evidence is available (Parkinson, 2003).
In situations where the prosecution and law enforcers understand that they have a single opportunity of securing a conviction, double jeopardy promotes transparent investigations and comprehensive trial preparations (Doak, 2005). This is the case because the law enforcers are likely to investigate all elements of the commission of an offence and develop a very strong case. In addition, the police would not carry out inadequate investigations because a retrial is central to their case (Coffey, 2003). However, the law enforcers and prosecution should not lose the motivation they had against the accused during the first trial. It was not clear in the original investigation and prosecution whether a retrial would come up due to the procedural safeguards in reforming the law. However, exceptions to the double jeopardy depend on the discovery of compelling and new proof that was not available before with the exercise of due diligence.
Power Imbalance and Tactical Advantages to the Prosecution
The power disproportion between prosecution authorities and the accused during the retrial is significant in a criminal justice system. During a criminal process, the presumption of innocence is dominant, and the prosecution bears the obligation of evidence (Coffey, 2003). Nevertheless, when the state prosecutes an individual, with all its resources and powers, the individual is at an advantage. However, the lack of adequate procedural safeguards, the state may refer to post-acquittal retrials, and this becomes an instrument of oppression. In appropriate situations, law enforcers may acquire documents and other evidence, take fingerprints or other bodily samples, or compel an accused to take part in a line-up procedure.
It is important to note that the prosecution authorities have financial and other resources, which the accused may lack. Overall, the accused has also some tactical merits including the right to silence and the right not to talk about their case except for some exclusion such as an expert's report. The defense's ability to conceal should not be undermined, and it is vital to restrict the disproportion witnessed between the state and the accused (Coffey, 2003). In addition, allowing post-acquittal retrial might compel an accused to answer questions in violation of the privilege against self-incrimination, which safeguards against compulsion to provide proof that may reflect the accuser's offense. For instance, during a retrial, the prosecution may have compelled the defense to forfeit some facts, which the prosecution may use to strengthen the case.
Therefore, during the retrial process, the prosecution knows the defense's case because of the forfeiting of some facts, which the prosecution compelled the accused to provide. This is likely to make the prosecution adapt to the case and increase the prospect of a conviction. Many of the accused individual will lack the resources to defend a second indictment for a similar offence (Coffey, 2003). The financial constraints could severely influence the preparation of an appropriate defense, which is aggravated in an event of a post-acquittal retrial. In comparison to the prosecutions office, it is apparent that there is an inequality of arms in regards to financial resources resulting to the power imbalance (Doak, 2005). In turn, this disproportion of power will favor the prosecution and oppress the accused.
Hardship associated with consequent prosecutions
The criminal justice trial is a stressful process in the event of life of the accused whose right to liberty is in jeopardy.…