Why does double jeopardy apply even when the acquittal was due to insufficiency of evidence? In the United States, the Double Jeopardy Clause of the U.S. constitution has been held to prohibit retrying a person for a crime they were previously acquitted of, even if the acquittal was merely due to an insufficiency of evidence. To quote Wikipedia on the subject: "Retrial is not possible if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults." The problem with this is, it is very easy to think of circumstances in which some, or even much, incriminating evidence might not come to light until after the trial (and possible acquittal). One big category would be evidence only made useable by scientific and\or technological advances that hadn't yet happened at the time of the trial; for instance, DNA profiling, which could easily provide damning evidence against a suspect, was not available until the mid-1980s, meaning that there could potentially be any number of criminals running around from before then who couldn't be convicted at the time because evidence that would have been damning, had it been useable at the time, wasn't useable yet, because the techniques for using it simply didn't exist yet. So why does double jeopardy prevent someone from being tried again, even if new incriminating evidence is found after the fact? It would seem to me that the discovery of new evidence at a later date would serve as proof that the defendant wasn't fully in jeopardy in the earlier trial, since it would show that the prosecution was handicapped by not being able to use evidence that existed, but which had not yet come to light...
Double Jeopardy This is an ancient right that dates back to the jurisprudence of the Roman Republic when it was called non bis in idem (approximately - an issue once raised must not be raised again). In its common law manifestation it applies to both civil and criminal trials and is an example that one of the functions of a judicial system is to bring finality to a dispute. This is often in conflict with the other aims of a judicial system which include justice and efficiency. A speech to the NSW Bar Association in 2013 by the then Chief Justice of Australia, AM Gleeson AC QC focused on finality and the following quotations illustrate why it is important: An acquittal by a jury is generally conclusive. This is explained in terms of double jeopardy. Autrefois acquit is a plea which, if made out, defeats a prosecution. For a number of reasons an acquittal may be regarded as erroneous. Later evidence, such as a confession, or information based on developments in technology, may suggest that an acquittal was unsound. Double jeopardy is entrenched in the US Constitution and the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The exact meaning varies: in many countries an acquittal at trial brings finality but others allow the prosecution to appeal an acquittal - this is not considered double jeopardy but rather a continuation of the same case. That said, some countries (notably Australia and the UK) allow retrials after acquittal for serious crimes (murder, violent gang rape etc.) where there is &quot;fresh and compelling&quot; [NSW] evidence of guilt. These are 21st century changes and are a direct result of cases where advances in technology would impact the verdict. As a constitutional protection, legislative change like this is not available in the United States. Geoffrey Robertson AO, QC in his 1998 book The Justice Game says &quot;these rules are ordained by the State: whether they are just depends on whether they provide for the possibility of beating the State at its own game.&quot; His thesis is that, compared to any individual, the state wields unfettered power and has unlimited resources. If the state were allowed to repeatedly bring charges against an individual then they would eventually gain a conviction. The state gets one shot - they need to bring their A game.
The short answer is that propensity evidence can only be circumstantial evidence and that it is generally inadmissible. But we should start by clarifying what &quot;circumstantial evidence&quot; means. It is not the opposite of legal evidence, but more like the opposite of direct evidence. Direct evidence is evidence that independently establishes a fact in question, while circumstantial evidence is evidence that gives rise to an inference that a fact in question is true. There is a misconception that circumstantial evidence is somehow inadmissible or inferior to direct evidence, but the truth is that the vast majority of evidence is circumstantial. So if you are on trial for murder, direct evidence would include your confession, an eyewitness account of the murder, and surveillance video of you killing the victim. Circumstantial evidence would include things like the victim's blood on your clothes, a taxi driver's testimony that he dropped you off at the victim's apartment just before the murder happened, or surveillance video of you exiting the cab and entering the apartment. Propensity evidence is evidence that a person is likely to have acted one way in this case because they have acted that same way in the past. It is therefore never going to be direct evidence and always going to be circumstantial evidence, because it never explicitly says &quot;the defendant did it,&quot; but rather says &quot;the defendant did it before, so maybe he did it again.&quot; The general rule is that propensity evidence is inadmissible. Fed.R.Evid. 404(b). It sometimes comes in anyway, though, for various reasons. If a defendant is facing trespass charges, for instance, a prosecutor would want to introduce evidence that the defendant has previously been convicted of trespassing. The defense will object that it's propensity evidence, but the prosecutor will respond that it's admissible if he's using it to establish something other than the likelihood that the defendant did the same thing again. If the prosecutor needs to prove that the defendant knew he was not allowed on the property, the trespass conviction is very strong evidence on that point. Another common exception is in sexual-assault cases, where some jurisdictions allow this type of evidence. Indeed, Wisconsin is among the states that explicitly permit evidence of the defendant's previous convictions for certain sex crimes to demonstrate that he committed a sex crime again in the current case. WI Stat § 904.04(2)(b). Louisiana likewise allows propensity evidence to establish that the defendant has a history of &quot;sexually assaultive behavior&quot; or a &quot;lustful disposition toward children.&quot; C.E. 412.2. Likewise, the defendant may be able to introduce evidence that the victim previously consented to sex and is therefore likely to have consented to sex in the current case. C.E. 412. EDIT: To address your examples, then, I would say that that the first would probably not survive a Rule 404(b) objection, and the second one would stand a better chance. On the second one, the defense should argue that the court should allow evidence of the defendant's interest in Egyptology, but not evidence of the convictions, as that would allow the jury to consider his motive without being diverted into propensity territory. The prosecution should probably counter that the defendant's convictions show more than just the existence of a motive, but also the strength of that motive, as well as perhaps that the defendant had the prior knowledge and skill that would be necessary to pull off a museum heist. The judge could go probably rule either way without being reversed. I would clarify one point on how to analyze and characterize this evidence: Rule 404 deals with propensity evidence, i.e., evidence that is meant to demonstrate that a person acted in conformity with his character. Subsection (a) deals with establishing propensity through &quot;character evidence,&quot; which is evidence that the defendant's character or character traits are consistent with the conduct in question at trial; while subsection (b) deals with establishing propensity through &quot;other acts&quot; evidence, which is evidence that the defendant previously engaged in conduct that is consistent with the conduct at question of trial. Both types of evidence -- character evidence and other-acts evidence -- are inadmissible to establish propensity, but they may be admissible to establish motive, plan, preparation, etc. So when your defendant's previous convictions are offered to prove motive to expand his Egyptology collection and not to establish propensity, the court could allow them into evidence not because they are admissible propensity evidence, but rather because they are not propensity evidence at all.
In the US, a person is "within their rights" to invoke the Fifth Amendment, i.e. refuse to self-incriminate. However, the government can give a person immunity from prosecution for offenses having to do with the testimony, in which case he can be compelled to testify. A person is not required to guess about whether they could actually be convicted based on their testimony. It is the privilege of the court (judge) to determine whether a witness has "a reasonable cause to apprehend danger from a direct answer" (Ohio v. Reiner, 532 U.S. 17).
Short answer: Maybe. Long answer: The answer here varies from jurisdiction to jurisdiction. Normally, the process goes like this: The application for the warrant is usually made under seal or otherwise in secret to prevent the target from trying to hide evidence. So before it's been executed, you can pretty much forget about accessing it. After the warrant is executed, though, there are differing answers to this question. The Supreme Court gave us a test for this kind of question in Press-Enterprise II, which held that the First Amendment gives us a qualified right to access court proceedings and records. The right applies when public access makes sense using the "experience and logic" test: Has the Anglo-Saxon experience typically been to provide access, and does logic tell us that access has beneficial effects for the judicial process? But lower courts have disagreed about how to apply the test. The Eighth Circuit allowed access to warrants in a defense-industry corruption investigation in In re Search Warrant for Secretarial Area-Gunn, but the Ninth Circuit denied access in to warrants in the same investigation in Times Mirror Co. v. U.S. I think, though, that the Ninth Circuit decision would have come out differently if the investigation had already ended. Just to mix things up further, the Fourth Circuit has also allowed access, but based on common law principles of access, rather than the First Amendment. That was Baltimore Sun Co. v. Goetz. Same in the Second Circuit: In re Application of Newsday, Inc. Individual states also have their own rules, but those are of course subject to limits under the First Amendment. When I wanted a copy of a warrant, I would go first to the clerk of the court whose judge signed the warrant. I would tell them what I was looking for, and I pretty much always got it. I would rarely submit a FOIA request, especially if the warrant was issued by a federal agency. Those requests sit in a queue for months or years without being reviewed, and the agency virtually always denies the request anyway. When law enforcement agencies and courts have copies of the same record, you're almost always going to have better luck getting access from the courts, which are set to open by default. If the court denies the request, try again after there's an indictment, and again after the trial.
Part XVIII of the Criminal Code addresses the power and procedure for appeals. Appeals of indictable offences are appealed to the provincial Court of Appeal. The Crown can generally appeal where there is an error in law. The Crown has a limited appeal on the basis of questions of fact. This includes appeals for unreasonable verdict.1 However, the Crown cannot appeal on issues of credibility unless it amount to an error in law. The Defence can appeal both issues of fact and law.(ss. 675 and 676) R. v. Kendall, [2005] O.J. No. 2457 (Ont. C.A.), at para. 46 from a Canadian Criminal Procedure Wiki. Unlike in U.S. law, the government can directly appeal an acquittal on certain grounds in Canada (without regard to whether it was a jury trial or a bench trial), although those grounds aren't quite as broad as those of the defense. This would also be true in modern English law. In practice, it is somewhat easier to appeal a verdict in a bench trial than in a jury trial, because in a bench trial you know why the judge says he or she came to the verdict and can determine if those reasons were incorrect, while in a jury trial, the appellate court presumes that the jury followed the law and use any even implausible basis for their opinion even if that isn't what really happened. The complete bar on appeals of acquittals of criminal charges in U.S. law due to the double jeopardy clause of the U.S. Constitution's Bill of Rights, is a rare exception to the global norm.
Yes, there is a good chance. Ordinarily, the law as written is what is enforced. On occasion, the wording of the law is actually ambiguous, or vague, which means that the jury will need an instruction as to how to interpret the law. In fact, juries are not literally read the statute, they are given a set of decision-making instructions so that they can decide "If we find X, we must acquit; if we find Y we may convict". Your attorney will, if he is diligent, note the problem and strive for an instruction that favors the client. (The prosecution will of course object). Eventually, on appeal, a court will decide what the law "really means", and that decision might be strictly based on the letter of the law, or it might be based on a supposed spirit of the law, i.e. what the legislature "originally intended". That outcome is determined in part by the jurisprudential ideology of the prevailing justices of the appeals court. Usually, letter of the law prevails until a higher court rules that a particular "spirit" is what was originally intended.
The question of double jeopardy is not for a jury to consider. It is a question of law that is decided by the judge. In this case, Rittenhouse is charged, among other counts, with first-degree reckless homicide. If he is found guilty on a lesser charge, he will have been acquitted of first-degree reckless homicide, and he will not be able to be retried on that charge by the state of Wisconsin. (If the trial is invalidated to the extent that jeopardy never &quot;attached,&quot; for example if it is found that the judge had been bribed to prevent conviction, then a new trial could be brought.) Once jeopardy attaches, there can be no additional trials for the same crime, and any subsequent attempts at prosecution should be dismissed by the court long before a jury is selected. By contrast, if a court determines that a trial does not constitute double jeopardy and a jury is seated, the jury will not consider the possible existence of double jeopardy; the only way to challenge a trial judge's decision on that question would be through the appeals process. If the trial jury in the original trial cannot decide unanimously to acquit on a particular charge then it is a hung jury,and indeed that may result in a mistrial on only those counts on which the jury has deadlocked. From Wikipedia, quoting the Federal Rules of Criminal Procedure: If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree. States, however, may approach this slightly differently.
Generally speaking, witnesses are not legally represented at trial, unless they are also parties. While a witness may choose to seek legal advice about a request or order they have received to give evidence, they would generally be expected to take this opportunity before they actually show up at trial. A witness examination would not normally be adjourned because a witness said something damaging to their own credibility or to one party’s case, and would like to pause and obtain legal advice. One goal of cross-examination is to expose unreliable evidence by obtaining this kind of tactical advantage over a witness. It is up to the party whose case was damaged to try to fix the problem in re-examination or reply evidence. That party may not be particularly interested in protecting the witness’s personal interests. There may be exceptions in specific factual situations, when it becomes clear that a witness does not understand their right to object to giving evidence on the grounds of self-incrimination or some other privilege. A judge may choose to halt further questioning of the witness if there is a real risk of a mistrial or some other procedural unfairness, which can be addressed without unfairly depriving the cross-examiner of their opportunity to challenge the evidence.