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

By George C. Thomas III

ISBN-10: 0814782337

ISBN-13: 9780814782330

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

Despite renowned trust, double jeopardy hasn't ever been a drawback at the legislature. It services in its place to maintain prosecutors and judges from implementing multiple legal judgment for a similar offense. picking out whilst possible various offenses represent the "same offense" is not any effortless job. neither is it usually effortless to figure out while a defendant has suffered a couple of legal judgment. Tracing American double jeopardy doctrine again to 12th century English legislations, the booklet develops a jurisprudential account of double jeopardy that acknowledges the critical function of the legislature in developing legal legislation blameworthiness.

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Example text

43 This kind of analysis is precisely why dou­ ble jeopardy is in such a mess today. On what basis could anyone judge which position best manifests a vague double jeopardy policy against un­ fairness? It is better to start over. Starting over, in my view, means returning to the history and policies underlying double jeopardy. Though Blackstone was far from the beginning of double jeopardy history, his 1764 summary is the most complete, satisfying statement of the doctrine and policy yet written.

As, 1. Where the former attainder is reversed for error, for then it is the same as if it had never been. And the same reason holds where the at­ tainder is reversed by parliament, or the judgment vacated by the king’s pardon, with regard to felonies committed afterwards. 2. Where the attain­ der was upon indictment, such attainder is no bar to an appeal [private prosecution], for the prior sentence is pardonable by the king; and if that might be pleaded in bar of the appeal, the king might in the end defeat the suit of the subject by suffering the prior sentence to stop the prosecution of the second, and then, when the time of appealing is elapsed, granting the delinquent a pardon.

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.

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