Charles Riccio's Internet Site

February 9, 2009

Double Jeopardy – Two Bites of the Apple or Only One The Frank Palko Story

Filed under: Uncategorized — by Charles @ 2:18 pm

Some recent high profile cases involving dramatic situations or well known personalities have caused an upsurge of interest in the workings of the legal system. And this is good. But the news media have stressed the lurid and sensational elements of these cases and sometimes have been less than accurate in explaining some of the legal procedures.

Remarks by some columnists have included the following:

  • “The civil trial of O. J. Simpson condemns him as a murderer”
  • “The civil trial is a basic violation of due process…even though it is permitted”
  • “The jury can’t sentence [Simpson] to death or imprisonment but it can sentence him to being in debt for the rest of his life”

A civil trial cannot and does not condemn anyone to anything, and if a civil trial were a violation of due process, it would not be permitted. And, of course, the civil jury could not and did not sentence O. J. Simpson to being in debt for the rest of his life.

But the most inaccurate statements of the law have been reserved for the concept of double jeopardy. The Simpson trials, the trials of police officers in the Rodney King case, the trials of Bernard Goetz (the Subway Vigilante, as the news media dubbed him) and other cases have been the bases of much confusion about double jeopardy.

Exactly what is the double jeopardy protection, anyway? The fifth amendment to the U. S. Constitution doesn’t tell us much:

“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

This fifth amendment right, like all rights in the Bill of Rights, applied originally only to the federal courts. The protection against double jeopardy could only be enjoyed by a person tried in federal court…he had no U. S. Constitutional protection against double jeopardy in the courts of his own state. Originally, a criminal defendant tried in a state court had only whatever double jeopardy protection his state chose to give him. So, if his state gave no protection against double jeopardy, he could be subjected to double jeopardy quite lawfully.

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