Double jeopardy

Just like “due process”, “double jeopardy” is a favorite phrase that is used not only by lawyers but by non-legals as well. Growing up, I associated the term with the popular television game show hosted by Alex Trebek (although now that I am grown and have finished law school, I have still not figured out why Jeopardy is the title of the show in the first place).  Given recent developments on headline hugging cases such as the dismissal of the case against the Vizconde massacre suspects and the sneaky Garcia plea bargain, I thought it would be educational to discuss the legal meaning of the term.

The first sentence of Article III, section 21 of the 1987 Constitution provides that “no person shall be twice put in jeopardy of punishment for the same offense.” Our provision was based on the Fifth Amendment to the US Constitution (passed in 1791) which provides that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The latter, in turn, has its roots in English common law, to try and curb abuses of the King who would continually try the same case until it got the verdict it wanted. Specifically, however, it was Henry II’s guilt over the murder of Archbishop Thomas Becket which led him to acquiesce to the rule that clergy that were convicted by the more lenient ecclesiastical courts could no longer be punished in the regular courts.  

Apparently the principle was embedded in Roman law as well as it is found in the Digest of Justinian- “the governor should not permit the same person to be again accused of a crime of which he had been acquitted.”

In its bare essence, the double jeopardy clause protects a person from endless litigation.This is in recognition of the fact that going thru litigation is in itself a form of punishment (at least to most people). A pending case can serve as a “Damocles sword” that may cause anxiety and sleepless nights to a party-litigant. 

By way of a crash course on the legal requirements to raise a valid defense of double jeopardy, under current law, a party must prove three requisites: (1) a first jeopardy must have attached; (2) that first jeopardy must have terminated; and (3) the second jeopardy must be for the same offense as that of the first.

In turn, jurisprudence teaches us that the first jeopardy attaches: (a) upon a good indictment (i.e., information), (b) by a competent court and (c) after arraignment and entry of plea.

On the other hand, a first jeopardy is terminated by: a) an acquittal; b) final conviction; c) dismissal without express consent of the accused; and d) “dismissal on the merits.

Finally, the test to determine if the second jeopardy is the same offense as that of the first jeopardy is whether the two offenses are identical or whether the second offense is an attempt or frustration of the other or whether one offense necessarily includes or is necessarily included in the other.   

While an accused will always have an opportunity to appeal a judgment of conviction, the prosecution, as a rule, can never appeal a judgment of acquittal as that would violate the rule on double jeopardy. Our Supreme Court has ruled time and again that “no error, however flagrant, committed by the court against the State, can be reversed when the defendant has once been placed in jeopardy and discharged even though the discharge was the result of an error committed.“ I can only think of one time when the Court carved one exception to the rule — and this was when the suspects in the Aquino-Galman murder case were exonerated by the Sandiganbayan in 1985. The post-Edsa 1 Court ruled that if “there was travesty of justice, then there was no valid trial and therefore, no termination of the first jeopardy.” In essence, the Court characterized the Sandiganbayan’s decision as constituting “grave abuse of discretion amounting to lack or excess of jurisdiction” so much so that the “acquittal” did not really terminate the case.

Applying the foregoing principles to the Vizconde case, it is quite evident why it would be difficult to reverse the judgment of acquittal- it was already the Supreme Court that rendered the ruling. Will the latter turn around in such a short period of time and admit that it committed another lapse in judgment? On the other hand, there is hope with respect to the Garcia plea bargain as the High Court can once again characterize the Ombudsman’s Office of the Special Prosecutor and the Sandiganbayan’s actions as the product of grave abuse of discretion. 

Of course, the foregoing may seem legal mumbo-jumbo to our non-lawyer readers. To properly understand all these concepts, one must either buy a book on Constitutional law or attend a class in Constitutional law II. But then again, even if lawyers have done the latter, they are still oftentimes confused.

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Greetings: Today happens to be the birthday of three outstanding legal practitioners who are at different phases of their professional careers — the venerable Ricardo Romulo of Romulo Law, the prolific Tito Lopez of SyCip Law and the indefatigable Jona Bautista who works with Skadden in Hong Kong.

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2011 Bar Exams: The Center for Global Best Practices (CGBP) will again be holding a seminar on “Best Test Taking Practices for the New Bar and Law School Exams” on Sunday, January 30, 2011, 9 a.m. - 5:30 p.m. at the new FEU Makati building along Gil Puyat (Buendia) avenue. For more information on the seminar, you may visit CGBP’s website at www.cgbp.org, email Ivy Enriquez at [email protected] or call 8427148 or 59.

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”Kung ang bata sa lansangan na walang makain at walang magandang matulugan   ay kayang   ngumiti . . . Sino tayo para sumimangot?”         —Text of R Yambao

Email: [email protected]