Do You Agree With the UK’s Decision to Scale Back its Prohibition on Double Jeopardy?

The Double Jeopardy Clause of the Fifth Amendment states:

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

As the Court of Criminal Appeals of Texas noted in Ex Parte Rathmell, 717 S.W.2d 33 (Tex.Crim.App. 1986):

Historians have traced the origins of our constitutional guarantee against double jeopardy back to the days of Demosthenes…[T]he principle of double jeopardy is at least 2,340 years old, and its roots can be traced to Greek, Roman, canon, and Hebrew law, with its evolution traceable back literally through the ages—from the Constitutional Convention, to the common law of England, through the Dark Ages….”

In 2003, however, the United Kingdom passed the Criminal Justice Act of 2003, which, inter alia, allows for an acquitted defendant to be retried for certain serious offenses if there is “new and compelling” evidence. In other words, the Act allows for the government to try to cure wrongful exonerations. So, does this exception to the prohibition on double jeopardy make sense?

Let’s look at a current example. 77 year-old Georgia Edmonds was found “bludgeoned to death [with a rolling pin] in her home in the southern English town in January 2008.” Matthew Hamlen was arrested and prosecuted for her murder but ultimately acquitted at trial in 2012.

Previous DNA swabs of the rolling pin and other parts of Edmonds’ clothing came up negative for any inculpating evidence. 

But Hamlen’s DNA was allegedly recovered from Edmonds’ heavily bloodstained blouse after it was first tested by forensic analysts in February 2014. Court experts have testified that the genetic material has a 1 in 26 million chance to be from someone other than Hamlen, according to the BBC.

As a result, Hamlen is now on trial for murder once again. Ostensibly, this means that the court found the DNA evidence “new and compelling” under the following standards:

(1) The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.

(2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).

(3) Evidence is compelling if—

(a) it is reliable,

(b) it is substantial, and

(c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.

(4) The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.

(5) For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.

So, which approach is better: The UK one, which allows for defendants like Hamlen to be retried, or the American one, which would prohibit the reprosecution? It’s a tough question.

The reasons for a strong prohibition on double jeopardy are clear. As the Supreme Court noted in Green v. United States, 355 U.S. 184 (1957):

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

That said, does it make sense to do nothing when there is clear evidence that a previously exonerated defendant actually committed murder? Is that justice for the victim, her family, and the community at large? 

On the other hand, my concern is that the English change to its double jeopardy could change the way the defense conducts itself at the initial trial. If a defendant knows that he could be retried after an acquittal, could that dissuade him from taking the witness stand because giving testimony could lead to a later investigation that uncovers “new and compelling” evidence? Currently, a potential defense witness with both helpful and harmful information might be called to create reasonable doubt. Under the UK version, would the defense be gunshy about calling this witness, for fear that it could lead to “new and compelling” evidence down the road?

It’s tough to say, just s its tough to say whether the English got it right or wrong.

-CM