Jeopardy

“ In prosecuting his former writ of error, plaintiff in error voluntarily accepted the result, and it is well settled that a convicted person cannot by his own act avoid the jeopardy in which he stands, and then assert it as a bar to subsequent jeopardy. ”

“ Mr. Darrow—But, it means jeopardy.
Gen. Stewart—I see, but they are only sworn to well and truly try the issues, that covers more than that; suppose one juror becomes sick in the morning, have to select a man to take his place Monday.
Mr. Darrow—I will let you sweat about it.
Mr. Stewart—We would have to enter a mistrial, is all there is to it.
Mr. Neal—What we want is to put the man in jeopardy.
The Court—Let me state to you gentlemen, lawyers who are not familiar with our practice. ”

“ Without expressing any opinion as to the correctness of the ruling of the court below concerning the failure to promptly raise the question of former jeopardy, although on this record it may be conceded it presents a Federal question, we pass from its consideration, since we think the contention that the accused was twice put in jeopardy is wholly without merit. ”

“ I adhere to my view that the Double Jeopardy Clause requires, except in very limited circumstances, that all charges against a defendant growing out of a single criminal transaction be tried in one proceeding. ”

“ That point of view should shape our conception of double jeopardy and due process of law. Once the prosecution can call a halt in the middle of a trial in order to await a more favorable time, or to find new evidence, or to make up the deficiencies in the testimony of its witnesses, the promise of protection against double jeopardy loses the great force it was thought to have when the Constitution was written. ”

“ When debate was resumed at the next session of Congress, Senator Spooner unmistakably indicated that jeopardy was being used in the constitutional, legal sense, in direct opposition to the views the majority now tries to ascribe to him:
'The question is whether it subjects a man under any aspect of it to the danger of double jeopardy. ”

“ A judge must temper the decision whether or not to abort the trial by considering the importance to the defendant of being able finally to conclude his confrontation with society through the verdict of a tribunal that he might believe is favorable to him. P. 486.
3. The trial judge here abused his discretion, and accordingly appellee's reprosecution would violate the Double Jeopardy Clause. ”

“ Even where references occur to the impaneling of the jury as the moment when jeopardy attaches, it is clear that jeopardy is still being used in its legal sense-after all, as the majority itself notes, ante, at 305, the impaneling of the jury does in fact often become the constitutionally relevant point in determining that 'legal jeopardy' has attached to prevent a reprosecution. ”

“ In Grady, we held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." ”

“ The plurality opinion today says that whenever a trial judge in a criminal case has 'abused his discretion' in declaring a mistrial on his own motion, the constitutional guarantee against double jeopardy categorically operates to forestall a trial of the case on the merits. ”

“ But this court reversed the judgment, and in the course of the opinion it was said:
'The Constitution of the United States, in the 5th Amendment, declares, 'Nor shall any person be subject to be twice put in jeopardy of life or limb.' The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. ”

“ If one juror can be withdrawn, there is no reason why six or eight may not be, not thus the accused, through persuasion or other causes, may have his life put in jeopardy, or be deprived of his liberty, through a body constituted in a manner unknown to the law. ”

“ No person shall be subject to be twice put in jeopardy for the same offence; nor shall he be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. ”

“ Jeopardy, in the constitutional sense, arises when the accused is put to trial before a court of competent jurisdiction upon a sufficient indictment, and the prisoner has been legally convicted or acquitted by the verdict of a jury, as appears by the record thereof remaining in the court where the verdict was returned. ”

“ The privilege of the writ of habeas corpus shall not be suspended, unless when in the case of rebellion or invasion, the public safety may require it, nor ever without the authority of the legislature.
SOURCES: 1817 art I §13; 1832 art I §13; 1869 art I §5. SECTION 22. Double jeopardy.
No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution. ”

“ The rule upon this subject was thus expressed by the court in its charge to the jury: 'If a number of men agree to do an act which, from its nature, or the way it is to be done, is an act that will put human life in jeopardy, then the putting of human life in jeopardy, or the destruction of human life, is a necessary and a natural and a probable consequence of the act agreed to be done by the party ”

“ It is designed to help equalize the position of government and the individual, to discourage abusive use of the awesome power of society. Once a trial starts jeopardy attaches. The prosecution must stand or fall on its performance at the trial. ”

“ We reaffirmed this rule only recently, pointing out that 'The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.' Stirone v. ”

“ The fourth paragraph of the act of March 2, 1907, supra, authorizes a review of a 'decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.' The defendant in this case had not been put upon trial, therefore he had not been in jeopardy. ”

“ Rep. 202, in the following language:
'This case, in its view of former jeopardy, stands out in bold relief against the commonly understood meaning of what constitutes once in jeopardy.'
'The law almost universally prevalent is that a verdict of acquittal in a criminal case is final and conclusive, and that there can be no new trial of a criminal prosecution after an acquittal in it. People v. ”

“ With the name of Judge is associated ideas of immaculate purity, sober piety, and fearless, favorless justice. Let it then be counted a dark crime for a recreant official so far to forget his reverend place, and noble office, as to run the gantlet of filthy vices, and make the word Judge, to suggest an incontinent trifler, who smites with his mouth, and smirks with his eye; who holds the rod to strike the criminal, and smites only the law to make a gap for criminals to pass through! If God loves this land, may he save it from truckling, drinking, swearing, gambling, vicious Judges! ”

“ The fiat of the court is the closing knell to a woman; and although she may know the judge in private life to be a fallible or—more incongruous still—a jovial man, his presence here is overpowering. Of the jury she feels vaguely, dread. Of the judge, awe.
The mother of the prisoner sat near him. Her sad, pale, refined face troubled the young prosecutor sorely and he tugged at his conscience and spurred on his resolution after each glance at her. ”

“ It is not for me to enquire into the motives of the plaintiff in this action. I know that his understanding is of an order much too high to let him believe that he is to recover the value of the batture from me. To what indirect object he may squint with one eye, while the other looks at me, I do not pretend to say. But I do say, that if human reason is not mere illusion, and law a labyrinth without a clue, no error has been committed: and recurring to the tenor of a long life of public service, against the charge of malice and corruption I stand conscious and erect. ”

“ SECOND LAWYER. Keep your tobacco, Jeppe! I speak for you not in the hope of receiving gifts, but merely from Christian charity.
JEPPE. Pardon me, Master Attorney! I didn't know you folks were so honorable.
FIRST LAWYER. What my colleague advances in favor of this man's acquittal is based entirely on conjecture. The question is not whether such a thing could happen or not, because that it did happen is proved both by witnesses and by the man's own confession.
SECOND LAWYER. What a man says from fear and awe has no weight as a confession. ”

“ Besides large sums expended on unusual acts of charity, this good man habitually distributed amongst the poor a tithe of his professional earnings.
In the seventeenth century, General Retainers were very common, and the counsel learned in the law, were ready to accept them from persons of low extraction and questionable repute. Indeed, no upstart deemed himself properly equipped for a campaign at court, until he had recorded a fictitious pedigree at the Herald's College, taken a barrister as well as a doctor into regular employment, and hired a curate to say grace daily at his table. ”

“ Every pleader who acts in the business of another should have regard to four things:—First, that he be a person receivable in court, that he be no heretic, nor excommunicate, nor criminal, nor man of religion, nor woman, nor ordained clerk above the order of sub-deacon, nor beneficed clerk with the cure of souls, nor infant under twenty-one years of age, nor judge in the same cause, nor open leper, nor man attainted of falsification against the law of his office. ”

“ With such a case as yours, my Lord, it is not sufficient that you have the court at your devotion, unless you can find means to corrupt or intimidate the jury. The collective body of the people form that jury, and from their decision there is but one appeal. ”

“ The clock strikes ten as he casts his heavy eyes over the grotesque group gathered into his little, dingy court-room; and he bows to his clerk, of whom he gets his law knowledge, and with his right hand makes a sign that he is ready to admonish the erring, or pass sentence on any amount of criminals. History affords no record of a judge so unrelenting of his judgments. ”

“ The records of the Northern Circuit abound with testimony to the hearty zeal with which the future Chancellor took part in the proceedings of the Grand Court—paying fines and imposing them with equal readiness, now upholding with mock gravity the high and majestic character of the presiding judge, and at another time inveighing against the levity and indecorum of a learned brother who had maintained in conversation that "no man would be such a——fool as to go to a lawyer for advice who knew how to get on without it." ”

“ It is not enough, that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed, that ‘it is the office of a good Judge to enlarge his jurisdiction,’ and the absence of responsibility ”

“ Testimony: ‘It’s a pity you can’t ride on a train in this abominable country without getting murdered! And such service! Did you ever hear of the checking system for baggage?’ Examining magistrate: ‘Madame will pardon me if I ask her to confine herself to the essential facts?’ Witness: ‘Well, if that isn’t essential, I’d like to know what is—such cheek!—I want you to know I’m an American citizen, and you can’t bully me, young man, or our ambassador will—’ Examining magistrate: ‘Madame, I beg of you—’ ‘Well, what do you want to know? I didn’t kill the man ”

“ Eminent statesmen, orators, generals, magistrates, and all persons of wealth and influence were regarded with jealousy by the people. The more causes came into court, the more fees accrued to the judges, and fines and confiscations enriched the public treasury. The prosecutor therefore in public causes, as well as the plaintiff in civil, was looked on with a more favourable eye than the defendant, and the chances of success made the employment a lucrative one. ”

“ Do not yet swear the jury. I cannot allow the trial to go on till I have paid him for his buck!' Plaintiff.—'I would have your lordship to know that neither myself nor my forefathers have ever sold venison, and I have done nothing to your lordship which we have not done to every judge that has come this circuit for centuries bygone.' Magistrate of the County.—'My lord, I can confirm what the gentleman says for truth, for twenty years back.' Other Magistrates.—'And we, my lord, know the same.' Lord Chief Baron.—'That is nothing to me. ”

“ You may have been uttering a profounder truth than you knew—which is one of the many prerogatives of genius—when you asserted that every one of those fearful and unhappy tradesmen had that jury within him in the jury-box. As you pointed out, we are the heirs of all the ages: the prisoner and the policeman, the advocate and the judge. And he whom you caused this jury of yours to elect as their foreman showed to me how responsible and authentic that jury was. ”

“ I marvel that you, who have been hitherto always taken for a wise man, will now so play the fool as to lie here in this close, filthy prison, and be content to be shut up thus with mice and rats, when you might be abroad at your liberty, with the favor and good-will both of the king and his council, if you would but do as the bishops and best learned of his realm have done ”