Articles AP_Constitution_5Amendment_DoubleJeopardy

Published on July 19th, 2013 | by Rob Slane

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Double Jeopardy in jeopardy

The trial of George Zimmerman may well mark the beginning of the end of the law relating to Double Jeopardy as enshrined in the 5th amendment to the US Constitution. It is the perfect case for the enemies of liberty, who have been waiting for the opportunity to overturn this ancient and “archaic” protection and it is also the perfect case to demonstrate why its protections are needed more than ever.

The purpose of the 5th Amendment is to protect against abuse of governmental authority in legal proceedings, and right in the middle of it we come across the following clause:

AP_Constitution_5Amendment_DoubleJeopardy“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.

I am writing this piece from Salisbury, England, and I currently sit not more than a mile away from one of four remaining copies of one of the most important documents in the world – Magna Carta. The language used in the 5th amendment– life or limb – is lifted directly from the Magna Carta, but though it is often assumed that the law relating to Double Jeopardy dates back to this document, signed in 1215, it is in fact even older than that, dating back to at least the time of the Norman Conquest in the 11th Century. It may even go back further still. Demosthenes, the Ancient Greek jurist, mentions the principle of ne bis in eadim, or ‘not twice for the same thing’, and how it prevented Athenian citizens from being tried twice for the same crime.

Some laws are pretty easy to grasp, while others need an awful lot more thinking about before we realise the point of them. Double Jeopardy very much fits into the latter category. The reason it sometimes appears to be problematic is that we can all think of examples where a prohibition on trying a man for the same crime twice can end up with a guilty man walking free. It could be that the judge or jury was partial. It could be that the prosecution counsel was inadequate. Or it could be that new evidence turns up years after the original trial which seems to point without any shadow of doubt to the acquitted man’s guilt. So why not try him again?

The overarching problem of a system where someone can be tried over again for a crime for which they have been acquitted, is that it is open to the most horrendous of abuses by the state. The specific issues are vast, but here are just some of them:

  • It pits the power and resources of the state against the individual – individuals simply do not have the same means as the state at their disposal to uncover new evidence.
  • It gives massive powers to the state to persecute individuals – individuals seen by the state as problematic can be harassed until they are “disposed of.”
  • It undermines the presumption of innocence – if a man is acquitted in a fair trial, hauling him back before a jury for the same crime leads to the inevitable suspicion that he is guilty and that the first trial was faulty.
  • It means that the state gains a permanent hold over its citizens – Once acquitted of a crime in a country which respects Double Jeopardy, a man is at liberty. In a country where a retrial and even a re-retrial is a possibility, a man acquitted by a jury may have to live the rest of his life in fear of being tried again.
  • It undermines the legal system itselfeither a trial is fair or it is not. In a system where people can be tried more than once for the same crime, the legal system is effectively condemning itself by saying that the first trial was somehow inadequate or unfair.
  • It could mean people being convicted for political or convenience purposes In certain high profile cases where the public demands a prosecution, scrapping Double Jeopardy could mean retrying a man just because he is the only suspect, in order to be seen to be solving a case and assuaging public outrage.

Now the discerning Christian may well ask, “Yes, I can see that, but is this not a man-made law? Where in the Bible is the principle of Double Jeopardy to be found?” The answer is really everywhere, as Dr. Greg Bahnsen pointed out:

“God’s law everywhere presupposes the principle of double jeopardy as a dictate of just dealing with men. No one can simply assume the right to come into judgment over another; the prerogative to judge another man must be delegated (2 Sam 15:4; Ex 2:14; cf. Acts 7:27,35). Consequently, to bring a man into trial and stand in judgment over him with the threat of punishment to him, one must have divine authorization for this kind of activity. Moreover, to go beyond this judgment and make a man submit to ordeal again in the courts is a FURTHER KIND of judgment which must be sanctioned by God’s word. That is, the burden of proof rests on those who would transgress the prohibition of double jeopardy to adduce authorization for their judgmental activity; without it they would be arrogating to themselves authority which does not belong to them.”(1)

He then went on:

“It is uniformly recognized that Scripture prohibits a double infliction of punishment (e.g., the substitutionary atonement of Christ rests on this cardinal point with respect to eternal judgment). Therefore, double trial (i.e., double jeopardy) is ruled out; a man once tried and sentenced is not be subjected to further trial for the same offense. Otherwise the biblical restriction of forty stripes (Deut 25:3) would be senseless; through retrial for the same crime a man could REPEATEDLY be given sets of forty stripes. Thus double trial is forbidden. Now, if this protection is extended even to the guilty, to those convicted of offense, HOW MUCH MORE should the protection be afforded to those who are acquitted as innocent?”(2)

So much for the general tenor of Scripture, is there anything more specific? Well yes there is, as again Dr Bahnsen noted:

“If a man brought a charge of premarital promiscuity against his new wife and it was legally established that she was innocent, the case was terminated with qualification. The slanderous husband could not appeal the verdict and bring his wife into judicial jeopardy again; “he may not put her away all his days” (Deut 22:13-19). Another example of protection against double jeopardy is clearly seen in the legislation about cities of refuge in God’s law. A man who had slain another was to flee to a city of refuge for protective custody until he could stand for judgment in the courts (Num 35:12, 24). If the verdict turned out that he was a willful murder, his life could not be spared (Deut 19: 11-13). However, after declaring his cause before the elders of the city and he is acquitted, then he is thereafter completely released from jeopardy for the crime; the accuser cannot pursue the matter further, appeal the verdict, or inflict anything upon the accused. When it is legally established that he is guiltless, the man is delivered out of the hand of the avenger of blood, the avenger is not given any further recourse against him, and the acquitted is to be restored to his own land and home in complete safety (Num 35: 25, 28; Jos 20:4-6). In terms of God’s righteous ordinances, the jeopardy of an accused terminates upon a favorable verdict (at any level of the legal system).”(3)

Now you may not be aware of this, but the country that gave English Common Law to the world, the one in which I reside not more than a mile from the best preserved copy of Magna Carta, actually abolished Double Jeopardy ten years ago. The Criminal Justice Act 2003 not only abolished trial by jury for some cases, but also allowed for retrials of those acquitted in free and fair trials where “new and compelling evidence” has been found and where it is in the “public interest.”(4)

The background to this astonishing abolition of nearly 1,000 years of legal wisdom has one similarity with the Zimmerman/Martin case: that is, it began with the death of a black teenager. However, there the similarities end. Stephen Lawrence was killed on the streets of South East London in 1993 and by all accounts, there seems to be no doubt that this was an unprovoked attack. Unlike the Zimmerman/Martin case, there also appears to be no question that the killing was racially motivated.(5)

Five men were accused of his murder, but the charges were subsequently dropped as it was deemed that there was insufficient evidence to convict them. The family of the murdered teenager then brought a private prosecution against the five, however the charges against two of them were dropped before the trial due to lack of evidence and the three remaining suspects were acquitted of murder after the trial judge ruled that evidence given by one witness was unreliable.

Off the back of that, a report was ordered by the then government into the handling of the case. The report concluded that the police force investigating the case was “institutionally racist” and also recommended the repeal of the laws relating to Double Jeopardy. The then government, being the foes of liberty that they were, duly obliged and scrapped this ancient protection.(6)

Meanwhile, the suspects who had been acquitted of the murder continued to have the finger of suspicion pointed at them. One national newspaper went as far as labeling them murderers and called on them to sue the paper if they could prove this wasn’t true.(7) So much for the presumption of innocence!

Most people in the country came to believe – rightly or wrongly – that these men were guilty, partly because an undercover video sting against them showed them to be a bunch of racist thugs, and partly because the men were clearly thoroughly unpleasant types, with convictions for things like drug dealing and the racist attack on a police officer. Whether that was enough to prove their part in the murder is another thing.

Nine years after the Double Jeopardy protection was scrapped for some cases, two of the accused were then retried for the murder of Stephen Lawrence and both were convicted. Did they get fair trials? It is impossible to say, but it is extremely improbable since “everybody in the country knew that they did it.”

Something similar is almost certainly now going to happen off the back of the Zimmerman case. Unlike the Stephen Lawrence case, which was clearly a case of cold-blooded murder, Zimmerman’s case rested on the claim of self-defense. This clam was clearly believed by the jury, but this is not good enough for the liberals. They have decreed that George Zimmerman is a racist and is guilty of the racially motivated murder of the wholly innocent Trayvon Martin, and they must get their man. The jury felt otherwise, but it won’t stop the liberals using the case for their cause.

This is why Double Jeopardy is so important. A whole political movement is now clamoring for a retrial, and of course they won’t be satisfied until the right answer is reached, which is the conviction of George Zimmerman. Do you think he could get a fair hearing now? If they could find a group of twelve totally impartial people committed to justice, truth and righteousness regardless of skin color, and with the courage to reject the onslaught of the liberal media telling them what verdict they must reach, then it might be possible. But as you know, such people are becoming harder to find.Endnotes:

  1. http://www.cmfnow.com/articles/pe019.htm()
  2. Ibid()
  3. Ibid()
  4. http://en.wikipedia.org/wiki/Criminal_Justice_Act_2003()
  5. Ibid()
  6. Ibid()
  7. Ibid()
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About the Author

Rob Slane lives with his wife and five home-educated children in Salisbury, England. He is the author of The God Reality: A Critique of Richard Dawkins' The God Delusion, and a soon-to-be-released book, A Christian & an Unbeliever discuss Life, The Universe & Everything. He is a regular contributor of worldview pieces for Samaritan Ministries International and for the Canadian magazine, Reformed Perspective. He also blogs once or twice a week on cultural issues from a biblical perspective at www.theblogmire.com.



16 Responses to Double Jeopardy in jeopardy

  1. Two Cents says:

    “Do you think he could get a fair hearing now? If they could find a group of twelve totally impartial people committed to justice, truth and righteousness regardless of skin color, and with the courage to reject the onslaught of the liberal media telling them what verdict they must reach, then it might be possible. But as you know, such people are becoming harder to find.”

    Comment: It would take only one such impartial juror to prevent a guilty verdict. Unhappily, there could theoretically be numerous subsequent trials, in each of which such an impartial juror would be required to prevent a guilty verdict!

  2. Chris says:

    Putting the double jeopardy issue aside for a moment, because there’s something amiss about this Zimmerman jury.

    Any of you “constitutionalist” happen to notice something strange about this “jury” ??? Was this a “constitutional” or a common law jury ??

    I get such a kick out of all you “constitutionalists” that tout such things as “I swore an oath to defend it against all enemies … ” and “We need to enforce the constitution against ….” , etc., etc., etc., while you don’t even have a clue as to what it’s about (good or bad), but we sure need to enforce it, and, more to the point: many of you swore an oath to defend and support something that you don’t even understand, if you even read it all, while you go and ask PERMISSION from government to do just about anything via licenses, permits, registrations, etc., etc. !!

    “And I’m proud to be an American, where at least I know (sic) I’m free (sic, again).”

    Any body out there that touts the constitution as the answer to our nation’s woes want to take a crack at the answer to what kind of “jury” this was in the Zimmerman case ??

    Having eyes, they see not. Having ears, they hear not.”

  3. r3VOLutionist777 says:

    So, to consistent, does this mean OJ Simpson shouldn’t have been re-tried after having been found not guilty, or am I missing something here?

    • Jereami says:

      OJ wasn’t retried on criminal charges relating to murder, he later found himself in a civil suit and was most recently arrested, charged and convicted of kidnapping, burglary and conspiracy to commit a crime.

  4. For Liberty says:

    bring it on… then we can retry everything until we get the verdict we want…

    If the 5th amendment becomes ignored then we know that our government is no longer just and has no rule over any man.

  5. Legalese says:

    Not to troll, but there are a couple things I would like to address . . .

    As the author points out, the Fifth Amendment states, “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” However, as with most of the Constitution, there is more to it than just the plain text. Double jeopardy does not apply to cases brought by “separate sovereigns,” such as a state government and the federal government. Therefore, in the Zimmerman Trial, if the federal government found grounds to charge and try ZImmerman for murder, they could constitutionally do so. Separately, any civil rights violations the federal government may pursue would not count toward double jeopardy because it is an entirely separate crime (even though it arises out of the same event).

    Another issue is with the interpretation of the jury’s finding. Yes, it found Zimmerman not guilty–that is not the same as saying they believed he acted in self-defense. In order to convict someone of a crime in the US–whether it be murder or larceny–the jury must find that all elements of the crime have been proven beyond a reasonable doubt. This is an incredibly high standard. Couple that with the fact that an unanimous verdict is needed to convict and it becomes a difficult proposition, even in a “slam dunk” case. In Zimmerman’s trial the evidence (along with the State’s argument) were not so solid. It’s easy to see why he was acquitted. But let’s not confuse things–it’s not acquittal because of self-defense, it’s acquittal because of a failure to prove murder or manslaughter “beyond a reasonable doubt.”

  6. bluejacket says:

    If this is the path we are going to take, re-trying cases until we get the verdict that we want, then let’s begin with the O.J. case.

    • Tionico says:

      I’d rather begin with a real trial of the Bama eligibility issue. And, concurrently, of Holder for his offenses.

  7. Chuck Michaelis says:

    Actually this has been going on since 1965. Can’t get a conviction at the state or local level? Find a “civil rights” violation and try them again at the federal level for “civil rights” violations.

    Yes, this has “righted” some clear miscarriages of justice, but it did so by creating its own miscarriage of justice- the specter of double-jeopardy. You reap what you sow and the nation has sown tyranny.

  8. Peter Jones says:

    Rob, how much does the idea that there is no justice beyond the grave play into this rejection of double jeopardy? Men have always gotten away who were guilty. This is nothing new. What is new is that we have no final justice. Therefore we feel to need to get them in the here and now. For a Christian the guilty always pay either at the cross or in Hell. But for non-Christian the only justice is the court system or some lynch mob scenario. They cannot leave it in the hands of God because they have rejected him. So if they think a man is guilty and he has gotten away with it they have no higher court of appeal to bring it to.

    • Rob Slane says:

      Peter,

      How much does the idea that there is no justice beyond the grave play into this rejection of double jeopardy? I agree with your answer 100% and would only add that I think the reason you have stated is also the main reason liberals reject the death penalty. If this life is all you get, as they believe, then taking a man’s life by capital punishment is unthinkable. If however, there is an eternity to come and the condemned man still has time to repent, then there is no such problem.

      Rob

  9. Stephen Ray Hale says:

    I think that not only double jeopardy, but the very means of convicting a man to death in the Bible required two witnesses for in the Torah Moses has, “in the mouth of one witness shall no man be put to death but in the mouth of witnesses two or three shall the matter be established.” [Being a close paraphrase]. This law in two corollaries, one being the law concerning one witness, and two being the law concerning two or three witnesses, is found in the constitution Section three Article three in reference to treason. But this was not only an old testament law but is found in the mouth of Jesus himself in Mathew 18 concerning church discipline and even the makeup of the church itself in a seed form giving the lie that we can go to church in communion with God on the riverbank with a fishing pole. Even Jesus, one person found in JHVH of ALL THE GODS (HA ELOHIM – here indicating some sort of plurality as in the trinity in the Hebrew), says in John “If I bear witness of myself my witness is not true” being corollary one, and Peter in his commentary on St. Paul’s writings says in this corrected translation concerning prophecy, “this first knowing that every prophecy of scripture is NOT OF ITS OWN INTERPRETATION.” This indicates that doctrine must be crafted from two or more testimonies found in the vast archive of testimony of scripture so our knowledge (GNOSIS) can be the result of investigation of two or more testimonies of scripture so as to have doctrine NOT KNOWLEDGE (gnosis) but EPIGNOSIS (or knowledge upon knowledge as one eye can give as a picture worth ten thousand words a certain amount of knowledge but when both eyes focus upon one point in the picture though the two pictures differ in detail even to the point of contradiction, the mind is torqued into interpreting the combined knowledge into that which is a magnitude above the sum of the two parts or pictures, or in sight we call it three dimensional perspective, and in reference to prophecy, temporal multi dimensional perspective giving us doctrine worthy of teaching). I like the Biblical way things can be had in this world, even great insight as to how to run a government worthy of God’s ordaining, or better yet, God ordaining worthy government as authority in the lives of his saints, and even those elect not yet manifest. Sorry I cannot give you anything more worthy for I am only a Fundamental Baptist Dispensationalist PreTribber.

  10. Dave says:

    I think Rob Slane would be surprised that a person can be tried again and again until proven guilty here in Canada. This happened some 30 years ago when a little girl was found raped and murdered and left in a ditch. The police targeted one 20 year old male and made his life hell. They did everything to make him look guilty including planting evidence, for example cigarette butts found at the scene and this individual didn’t even smoke. They finally got their conviction after a second trial and was sentenced to 20 years. Thankfully, DNA technology eventually cleared him of any involvement in the crime. He sued the justice system for one million dollars!

  11. Ducky says:

    Right now, I just see this whole thing as trying to stir up chaos and importance so that Obama’s and Holder’s “race baiting” and “social-engineering” friends can make money.

    I don’t know what basis they can put Zimmerman on trial. However, if Holder does bring this to trial, it’s not because he wants to override Double Jeopardy, which it is, it’s going to be because we’ll be at the mercy of not a court of law but the federal government. Which, in some ways it already is that way, considering the trap of guns and drugs (see Ron Paul’s site). Double Jeopardy is just writing on paper to these guys. I see this really being a 10th Amendment issue, and how they’re massaging the public’s senses to accept the federal government’s overreach.

    • r3VOLutionist777 says:

      “Double Jeopardy is just writing on paper to these guys.”

      Tru ‘dat.

      But then again, the entire Constitution (not mention the Ten Commandments).are “just writing on paper to these guys”.

  12. ACS says:

    If someone is found guilty, we aren’t proposing to retry him again and again until we get a verdict of innocence. The usual suspects are always at war with what protects us.

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