Double Jeopardy: The History, The Law by George C. Thomas III

By George C. Thomas III

In the 1st book-length ebook at the topic in over 1 / 4 century, George C. Thomas III advances an built-in idea of double jeopardy legislation, a concept anchored in ancient, doctrinal, and philosophical method.

Despite renowned trust, double jeopardy hasn't ever been a trouble at the legislature. It capabilities in its place to maintain prosecutors and judges from enforcing multiple legal judgment for a similar offense. picking while likely assorted offenses represent the "same offense" isn't any effortless activity. neither is it usually effortless to figure out whilst a defendant has suffered multiple felony judgment. Tracing American double jeopardy doctrine again to 12th century English legislation, the e-book develops a jurisprudential account of double jeopardy that acknowledges the principal position of the legislature in developing felony legislation blameworthiness.

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Keeping the focus on what the legislature would have intended permits easy resolution of cases in which the defendant procures an acquittal by fraud. 65 Though the Supreme Court has not intimated an answer to the fraud question, a legislative intent theory suggests that the treatises are correct. In the absence of fraud, acquittals always bar a second trial, and the Court has been sensitive to the reality that “acquittals” can occur in contexts other than a not-guilty verdict at trial. 66 In this context, the Court has held that an outcome that is equivalent to an acquittal (a finding that the state produced insufficient evidence to convict) should be treated as an acquittal.

A man is shaving. How many acts is he doing? Is shaving an act? Yes. Is changing the blade in one’s razor an act? Yes. Is ap­ plying lather to one’s face an act? . ”59 But there is no reason to use a metaphysical account in double jeopardy analysis. A more defensible account is to locate “act” in the legislative de­ scription of the prohibited conduct. ” This ac­ count makes it possible to defend a “same act” definition of same offense. When deciding how to understand “acts” prohibited by the criminal law, the most obvious source would be the statutory language.

The key question is whether Congress meant for the CCE offense to operate sepa­ rate from the predicate felonies, rather than as a substitute for them. One way Congress could have envisioned the problem is as follows: if someone commits a sufficient number of predicate felonies, then we want that person convicted of CCE in lieu of the other, presumably lesser, predicate felonies. If Congress meant that, of course, it did not mean to create sepa­ rate offenses. The answer to the separate-offense question is the answer to my Model 3 question about legislative intent to create different double jeop­ ardy offenses.

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