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Retrying the Acquitted in England, Part I: the Exception to the Rule Against Double Jeopardy for "New and Compelling Evidence"

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Retrying the Acquitted in England, Part I: the Exception to the Rule Against Double Jeopardy for Retrying the Acquitted in England, Part I: The Exception to the Rule Against Double Jeopardy for "New and Compelling Evidence" DAVID S. RUDSTEIN* TABLE OF CONTENTS 1. IN TRO DU C T ION .................................................................................................. 3 8 8 I1. THE CRIM INAL JUSTICE A CT 2003 ..................................................................... 392 I11. THE DOUBLE JEOPARDY PRINCIPLE .................................................................... 398 A . H istory ..................................................................................................... 3 9 8 B. Policies Underlying the Rule Prohibitinga Retrial Following an A cquittal ............................................................................ 403 1. Preservingthe Finalityof Judgments ............................................... 405 2. M inimizing PersonalStrain .............................................................. 408 3. Reducing the Risk of an Erroneous Conviction ................................. 411 4. Protectingthe Power of the Jury to Acquit Against the E vidence ......................................................................... 4 14 5. EncouragingEfficient Investigation and Prosecution ...................... 415 6. Conserving Scarce Prosecutorialand Judicial Resources................ 416 7. PreventingH arassment ..................................................................... 4 16 8. Maintainingthe Public's Respect and Confidence in the L egal System ............................................................................... 4 17 * Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology; B.S., University of Illinois, 1968; J.D., Northwestern University, 1971; LL.M., University of Illinois, 1975. I would like to thank my colleagues at the Oxford Round Table in Criminal Law, held in March of 2006 at Pembroke College, Oxford, England, for their valuable comments on an earlier draft of this article. IV. THE EXCEPTION FOR "NEW AND COMPELLING EVIDENCE ........................ 418 A . The P roblem ............................................................................................ 4 18 B. Will the Exception for "New and Compelling" Evidence Lead to More Accurate Outcomes or to Convictingthe Innocent? ................................................................................................. 430 C. The Exceptionfor "New and Compelling Evidence" and the Remaining Policies Underlying the Rule Prohibitinga RetrialFollowing an Acquittal .......................................... 442 V . C ON CLUSION .....................................................................................................456 I. INTRODUCTION More than 240 years ago, Sir William Blackstone, perhaps the most important commentator on the English common law, wrote that "when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime."' This plea of autrefois acquit (a former acquittal), Blackstone explained, is based upon the principle that "no man is to be2 jeopardy of his life, more than once for the same offence,", brought into 3 which he called a "universal maxim of the common law of England.", Yet, notwithstanding this long-established principle4 barring "double 1. WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAW OF ENGLAND *335. Today, in practice, such second prosecutions are not brought and so do not reach court. SELECT COMMITTEE ON HOME AFFAIRS, THIRD REPORT, THE DOUBLE JEOPARDY RULE, 2000, H.C., 6 (Eng.) [hereinafter SELECT COMMITTEE ON HOME AFFAIRS, THIRD REPORT]. At the time Blackstone wrote his monumental treatise on the common law, a statute existed allowing the wife or male heir of a homicide victim to bring a private prosecution, known as an "appeal," against the alleged killer despite that individual's previous acquittal in a prosecution brought by the King for the same killing. [1487] 3 Hen. 7, c. 1 (Eng.). The statute was of little practical significance, however, because by the early part of the eighteenth century prosecution by appeal was "all but practically obsolete." I JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 247 (London, MacMillan 1883); see also BLACKSTONE, supra, at *312 (stating that prosecution by appeal is "very little in use"). Parliament formally abolished prosecution by appeal in 1819. [1819] 59 Geo. 3, c. 46 (Eng.). 2. 4 BLACKSTONE, supra note 1, at *335. Blackstone used the alternative spelling autrefoits acquit. In this article, I will use that spelling only when quoting from material using that spelling. 3. Id. Blackstone also wrote that "the plea of autrefoits convict, or a former conviction for the same identical crime ...depends upon the same principle as the [plea of autrefoits acquit], that no man ought to be twice brought into danger of his life for one and the same crime." Id. at *336. 4. The first recorded mention in English law of a person raising a plea of a former acquittal to bar his prosecution for the same offense appears to have occurred in 1201. Sumerset (1201), in 2 PLEAS BEFORE THE KING OR His JUSTICES, 1198-1202, pl. 737 (Doris Mary Stenton ed., Selden Soc'y 1952) (holding null Goscelin's appeal, i.e., a private suit seeking punishment, against Adam de Rupe for killing Goscelin's brother [VOL. 8: 387, 2007] Retrying the Acquitted in England SAN DIEGO INT'L L.J. jeopardy,"5 on September 11, 2006, William "Billy" Dunlop was convicted of the murder of Julie Hogg, a crime for which he had been acquitted nearly fifteen years earlier. 6 Retrial of Dunlop was permissible under an exception to the rule against double jeopardy created by Parliament in a statute enacted in 2003.7 That statute, the Criminal Justice Act 2003, allows an acquitted person's protection against double jeopardy to be withdrawn for certain serious offenses 8 when "there is new and compelling evidence against [him]" 9 and permits the government to retry the individual despite his previous trial and acquittal for the same offense.' 0 In doing Ailnoth, alternatively, because "on another occasion" Ailnoth's wife brought an appeal against de Rupe for the same killing and he "with[drew] quit therein"). For a brief history of the double jeopardy principle in English common law, see David S. Rudstein, A Brief History of the Fifth Amendment GuaranteeAgainst Double Jeopardy, 14 WM. & MARY BILL RTS. J. 193, 202-21 (2005). 5. Noted English legal scholar Glanville Williams stated that because the doctrine applies only when there has been an acquittal, or a conviction, see supra note 3, "the expression 'double jeopardy' . is misleading for English law," for "[t]he defence is not given to a person merely because he was previously at risk of being convicted." GLANVILLE WILLIAMS, TEXTBOOK OF CRIMINAL LAW 164 (2d ed. 1983). 6. Press Release, Crown Prosecution Service, William Dunlop Pleads Guilty in First Double Jeopardy Case, Sept. 1I, 2006, http://www.cps.gov.uk/news/pressreleases/ archive/2006/152 06.html (announcing that William Dunlop pleaded guilty to the murder of Julie Hogg) [hereinafter Crown Prosecution Service, Press Release 3]. For a summary of the events leading up to Dunlop's conviction, see infra note 14. 7. Criminal Justice Act, 2003, c. 44, §§ 75-86 (Eng.). The relevant portions of the statute took force on April 4, 2005. Criminal Justice Act, 2003, c.44, § 336 (Eng.). The statute applies, however, to all acquittals, regardless of whether they were rendered before or after passage of the Act. Criminal Justice Act, 2003, c. 44, § 75(6) (Eng.). 8. The statute, of course, uses the English spelling of the word "offense" ("offence"), as did Blackstone, see supra text accompanying note 2, and as does the Fifth Amendment to the Constitution of the United States, see infra text accompanying note 59. In this article, I will use the American spelling, except when quoting material that uses the English spelling. I will do the same for any other words that differ in their English and American spellings. 9. Criminal Justice Act, 2003, c. 44, § 78(1) (Eng.). 10. The statute sets forth detailed requirements that must be met before the second trial can take place. See infra text accompanying notes 17-51. The Criminal Justice Act 2003 also grants the government the right to appeal to the Court of Appeal certain rulings of the trial court, including a ruling entered at the conclusion of the government's case in "a trial on indictment," Criminal Justice Act, 2003, c. 44, § 57(1) (Eng.), that "there is no case to answer." Id. § 58(7)(a), i.e., a directed verdict of acquittal, see JOHN SPRACK, A PRACTICAL APPROACH TO CRIMINAL PROCEDURE § 20.48 (11 th ed. 2006). If the Court of Appeal reverses the trial court's ruling, it can "order that [the] proceedings for [the] offence may be resumed," Criminal Justice Act, 2003, c. 44, § 61(4)(a) (Eng.), or "order that a fresh trial may take place ... for [the same] offence." Id. § 61(4)(b). Although this provision also raises significant issues concerning the rule against double jeopardy, my article focuses only upon the 389 so, the statute creates a "revolutionary" new power in the Court of Appeal" and "extinguishes the centuries old common-law rule against double jeopardy,"' 2 hereby rescinding "[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence." 3 In this article, I will discuss the wisdom of the
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