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Looking at the article about "double jeopardy" it seems that the US is the only country in the world where the prosecution is not allowed to appeal an acquittal in the lowest court, unless the trial itself is declared invalid for some reason. Every other country allows the prosecution to drag the case all the way up to the country's Supreme Court, potentially forcing the accused to spend many years in uncertainty. This also means that the US is effectively the only country where "jury nullification" is truly possible.

Why aren't the same rules used in other countries? Is the US legal system truly the softest in this world from this point of view?

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    I know you were sent here from Law with this question, but it may be more appropriate to ask there why the US courts interpreted the double jeopardy provision as they did. I believe the specifics are ruled by judicial decisions rather than statutory or constitutional law. – phoog Oct 5 '17 at 22:19
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    @jamesqf But other countries with the same rule don't see it as preventing appeal of an acquittal. That obviously bars retrying the case, not appealing it. Plus there are various exceptions that do allow double jeopardy. For example, if a prosecutor seeks an indictment and fails, that is not usually a bar to a subsequent indictment for that same offense. And it's not that uncommon for a new trial to be awarded to someone who was convicted, even though there's no conviction exception in the constitution. – Brythan Oct 6 '17 at 4:10
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    @JonathanReez my point is that double jeopardy isn't codified anywhere. The reason it works the way it does is because courts -- the "non-political branch" -- made several rulings over the years, and the political branches haven't seen fit to amend the constitution to overrule the courts. Asking why the US is the only country in the world that does X and then ignoring the constitutional mechanism that brought X about is bizarre indeed. – phoog Oct 6 '17 at 4:58
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    @phoog here in Czech Republic some trials last for a decade as the prosecution keeps appealing while the legal system is extremely slow. That's a lot worse. – JonathanReez Oct 6 '17 at 5:07
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    @phoog And what is the ratio of such people to those innocents who would, without double-jeopardy protection, have possibly been convicted due to such appeals? The goal of such an idea is to minimize false positives (due to overzealous prosecutors/etc.). Innocent until proven guilty, etc. – JAB Oct 6 '17 at 15:10
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+50

Short Answer

Scotland has something similar to American double jeopardy when a verdict of "not guilty" rather than "not proven" is issued by the jury. Indeed, this protection is even greater there because generally speaking there is no separate set of U.K. criminal laws that can be enforced in Scotland if someone is acquitted under Scottish law.

All other systems based upon the civil law systems of Europe or the British Commonwealth system do not appear to have this feature. China also allows appeals of acquittals.

I was unable to discern the state of the law in various tribal courts around the globe, and in Islamic law courts, none of which are derived from either the British system or the European civil law system or China's legal system.

Long Answer

U.S Practice

What distinguishes double jeopardy applied in the United States from the similar doctrine non bis in idem applied much more widely (disallowing criminal retrials by the same sovereign after a final judgment in a criminal case), is that the American practice prohibits a prosecution appeal from upsetting an acquittal.

This is partially mitigated by making interlocutory appeals prior to a jury trial or bench trial when jeopardy attaches, routine in American criminal procedure, usually on issues such as jurisdiction and the suppression of evidence under the 4th Amendment exclusionary rule and Miranda v. Arizona.

This also isn't quite technically true. A handful of U.S. states, including Colorado, actually allow prosecution appeals following an acquittal for purposes of establishing legal precedents, but the appeal does not change the permanent termination of the criminal charges. See People v. MacLeod (Colo. 2008); Krutka v. Spinuzzi (Colo. 1963), Colo. Rev. Statutes § 16-12-102(1).

There is also arguably a narrow "law only" exception to the double jeopardy rule in the United States, and an exception for when a party is never actual placed "in jeopardy", for example, because he has bribed a judge in a bench trial.

It also bears noting that while the U.S. does not allow acquittal appeals, acquittals in another state or by the federal government, are not a bar to a criminal trial of the same conduct by a state court, and a state acquittal is not a bar to a federal prosecution. So, the U.S. achieves through federalism essentially what would be barred under the double jeopardy clause if it were a unitary state.

The International Covenant on Civil and Political Rights which is influential in many countries, provides a criminal defendant, but not the state, with a right to a direct appeal of a conviction, something that the United States Constitution does not (although some state constitutions do). See, e.g., McKane v. Durston, 153 U.S. 684, 687 (1894), and while the U.S. adopted the ICCPR, the Senate provided when it did so that it was not self-executing, so this treaty right can not be enforced by criminal defendants.

This history of the unusual stance of U.S. law on double jeopardy is also set forth below.

A Short History of Double Jeopardy Law

The Deep Roots Of Double Jeopardy In General

Historically, it was part of both Roman law and English law, with English law being the source of the American concept in the first place.

As of 1913, the Oklahoma Supreme Court, stated, without supporting authority, that the concept was nearly universal globally. Stout v. State, 36 Okl. 744, 756 (1913). As this source notes:

The concept of double jeopardy is one of the oldest in Western civilization. In 355 B.C. Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400-1066 A.D.) through the canon law and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions.

In England the protection against double jeopardy was considered a universal maxim of the common law and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). However, the English double jeopardy doctrine was extremely narrow. It afforded protection only to defendants accused of capital felonies and applied only after conviction or acquittal. It did not apply to cases dismissed prior to final judgment and was not immune to flagrant abuse by the British Crown.

A law review article from 2016 notes that:

The general principle that one cannot be twice prosecuted for the same acts or offense appears in the laws of most countries. It is known in the United States as the protection against “double jeopardy;” in Europe and elsewhere the principle is known under the Latin phrase ne bis in idem. However, a vexing problem occurs when a person or a company may be subject to criminal prosecutions for the same facts in two different countries. The domestic law of the second country may provide little or no protection, and international agreements vary in their applicability and scope.

U.S. and English Legal History Pertinent To Double Jeopardy

One factor in the usual position taken in the United States is that direct appeals of criminal cases did not exist in federal criminal cases in the United States until about 1890 or in England prior to American Independence. Prior to that point, neither convictions nor acquittals were subject to direct appeal, although very limited appeals through writs of habeas corpus (largely going to issues like the jurisdiction of the court trying the case) were allowed. State incorporation of federal double jeopardy law in criminal cases happened after the tradition of interpreting double jeopardy to prohibit appeals of acquittals was well established under federal law.

In early common law jurisprudence appeals of criminal acquittals were handled by the English Star Chamber, whose practices the U.S. Bill of Rights was to a large extent directed as abolishing:

The earliest methods of review directly targeted the jury itself. Indeed, Langbein has argued that a desire to control juries drove much of the common law’s development. During the medieval period, jury verdicts could be quashed through a process known as attaint. A second jury, with twice as many members, was empanelled to review the verdict. If reversed, members of the original jury received “savage penalties.” This process was, however, not available to criminal defendants and was very rarely used in criminal cases.

During the late fifteenth and sixteenth centuries, the practice of fining jurors became common. The Star Chamber, which was responsible for protecting against abuse of the legal system, regularly fined jurors for bringing in acquittals against the weight of the evidence. The presumption seems to have been that such findings could only be the result of bribery or corruption. In Bushell’s Case, following the abolition of the Star Chamber, the courts ended this practice.

Criminal Appeals Of Acquittals In Early Modern Continental Europe

Criminal appeals developed earlier in France out of a desire for centralization of power by monarchs as earlier feudal practices waned and based upon procedural practices of canon law (i.e. Roman Catholic religious courts which were greatly influential on European courts) (same source):

By 1670, and probably considerably earlier, a generous system of criminal appeals was established in France. In many cases, appeals were automatic. Lodging an appeal suspended the execution of sentence, and the prosecution had the right to appeal against either an acquittal or the sentence imposed.

Parallel developments took place in Germany and Italy.

In part this was facilitated by the fact that European civil law system courts make findings of fact and conclusions of law in every case that can be meaningfully reviewed without a transcript and allow de novo retrial of factual issues. In contrast, verbatim records were not kept in early American criminal cases and the jury did not make written findings of fact or conclusions of law that could easily be reviewed.

Appeals Of Acquittals Of The Modern British Commonwealth

English law has since then allowed appeals of acquittals, although prosecution appeals are more limited in cases tried in indictments (generally more serious charges) and it appears that all other countries in the Commonwealth followed suit.

Australia allows appeals from acquittals in some kinds of cases but not others, while Canada and New Zealand, also have some kinds of cases, at least, where appeals from acquittals are not permitted, according to this Australian commission report. Canadian sources state that acquittals can be appealed in Canada, but only on much more limited grounds (it cannot argue that the verdict was not supported by the evidence) than appeals by defendants stating:

The Crown may appeal an acquittal, but the Crown's right to appeal is not as broad as the accused's right to appeal and is very limited. The Crown must show there was a significant error of law. An example of an error of law may occur when important evidence is wrongly excluded at the trial. The Crown may also appeal the sentence but such appeals are also very limited because appeal courts will not usually interfere with the trial judge's decision on sentencing.

Another source states that appeals of acquittals are permitted in New Zealand on a similar basis to those in Canada.

Scotland has two kinds of non-conviction verdicts: "not guilty" which has double jeopardy effect similar to the U.S. and "not proven" which does not.

Modern Civil Law Country Practice

In Europe, a criminal acquittal of Amanda Knox was appealed in 2011 in Italy and an appeal of an acquittal of bribery charges in Sweden was appealed in 2017, illustrate the modern rule in civil law countries.

Jury Nullification

This also means that the US is effectively the only country where "jury nullification" is truly possible.

This isn't really true in British Commonwealth countries, although it is in countries based upon European continental civil law. In British Commonwealth countries the grounds upon which appeals of acquittals are permitted are narrow enough to allow for some jury nullification verdicts. Usually, British Commonwealth appeals of acquittals can't be based on the argument that the evidence of guilt presented was overwhelming, although England allows for retrials of acquitted defendants based upon substantial new evidence.

In contrast, the trials de novo held in European continent civil law based systems do not allow for the equivalent of jury nullification.

Conclusion

The vast majority of legal systems in the world are based upon either the British Commonwealth system, or upon the civil law system of Europe, with borrowings from distinctly American legal processes being mostly piecemeal.

For example, acquittals can be appealed in Japan (see footnote 48) which primarily used the legal codes of Germany as its model.

There are a few legal systems that don't follow these models - most notably Islamic law courts, the Chinese legal system, and selected tribal courts of indigenous peoples in the Americas, Africa and Southeast Asia.

China does not have an equivalent to U.S. double jeopardy. I have not located a resource answering this question in the context of Islamic law systems and tribal courts.

  • That's interesting but, in spite of being accepted and rewarded with a bonus, I fail to see how this actually answers the question. – Relaxed Nov 8 '17 at 12:44
  • @Relaxed I agree that it doesn't answer the 'why' question, but it does give a good overview. – JonathanReez Nov 8 '17 at 16:07
  • @Relaxed It is basically historical accident. It followed the British model but broke away before the British reformed their system and stayed that way out of an aversion to anything done in the Star Chamber and because federalism has made reform less pressing than in other places. – ohwilleke Nov 8 '17 at 16:45
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No. Canada has this.

http://laws-lois.justice.gc.ca/eng/Const/page-15.html

From the Canadian Charter of Rights:

  1. Any person charged with an offence has the right ...

    (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

Under the rules of Canadian Jurisprudence, any appeal can only be made on errors of LAW, not on matters of fact. If an appeal is held the legal effect is that the trial becomes a nullity, in that legally, it never happened, and a new trial can be ordered.

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    Finally acquitted means all appeals have been exhausted. So the prosecution is free to appeal a judgement from a lower court, which is impossible in the US. – JonathanReez Nov 2 '17 at 16:15
  • Canada has a "double jeopardy" but the e.g. the crown prosecutors can appeal an acquittal -- see en.wikipedia.org/wiki/Double_jeopardy#Canada – ChrisW Oct 9 '18 at 11:48

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