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Double Jeopardy

A prohibition against being tried or sentenced twice for the same offense.

To be in put in criminal law jeopardy twice as to the same offence.

The term refers to a defence available to a person autrefois acquit (previously acquitted) or previously convicted, to prohibit any subsequent attempt to re-try him/her for the same offence.

This is explicitly prohibited by most state’s constitutional laws such as the Fifth Amendment in the USA, and section 11(h) of the Canadian Charter of Rights and Freedoms.

In Ashe v Swenson, a 1970 US Supreme Court case, cited as 397 US 436 (available online at altlaw.org/v1/cases/400107.txt), Mr. Justice Stewart referred to the double jeopardy defence, that it "protects a man who has been acquitted from having to run the gauntlet a second time."

A significant distinction is made between criminal exposure (where the exercise is aimed at punishment) and civil liability including fines, where the aim is primarily compensation.

The equivalent to civil law’s concept of res judicata.


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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.

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