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Gwangjuboy
Joined: 08 Jul 2003
Location: England
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 Posted: Sat Feb 07, 2004 4:07 am Post subject: |
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| Gord wrote: |
In reading up on U.S. law and whatnot, what you've said is half true. |
No. It was totally accurate. Read the above case and admit that you were wrong. |
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Gord
Joined: 25 Feb 2003
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| Posted: Sat Feb 07, 2004 4:59 am Post subject: |
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| Gwangjuboy wrote: |
| No. It was totally accurate. Read the above case and admit that you were wrong. |
The U.S. is more restrictive in appeals that I expected as I never really read up on it before. That example was taken directly from a website I read an example when an appeal could be lodged. In going back and looking for examples, I could only find examples from other countries and not the U.S. which would suggest the site I original read was wrong.
Though doesn't mean double jeopardy doesn't exist in the U.S. Double jeopardy law prohibitions only prohibits a later prosecution for the same offence in a court at any level, but doesn't prohibit simultaneous prosecution in multiple courts for the same offence, and that's called the "Dual Sovereignty Doctrine". In Durden v USA, the supreme court ruled that the "dual sovereignty doctrine" is a-ok, even if it's the same thing as double jeopardy. |
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Gwangjuboy
Joined: 08 Jul 2003
Location: England
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| Posted: Sun Feb 08, 2004 12:57 am Post subject: |
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| Gord wrote: |
| Though doesn't mean double jeopardy doesn't exist in the U.S. Double jeopardy law prohibitions only prohibits a later prosecution for the same offence in a court at any level, but doesn't prohibit simultaneous prosecution in multiple courts for the same offence, and that's called the "Dual Sovereignty Doctrine". . |
I have read the ratio decidendi of the Durden case on many occasions. It is not a decent example to use in your argument. The dual sovereignty doctrine isn't an infringement of the double jeopardy, and it is factually incorrect to equate the doctrine with a violation of the fith amendment. The dual sovereignty doctrine recognises the right of two distinct sovereigns to prosecute for violations of their criminal laws. Prima facie, there appears to be a considerable overlap bewteen federal and state criminal statutes. For the layman, it is easy to conclude that there is a violation of the double jeopardy provison where a second prosecution takes place by a different sovereign. Now, closer inspection of the case law is warranted.
US v Lanza. Lanza demonstrates that concurrent jusrisdiction isn't an infringement of the fith amendment. This precedent has been cemented in the following, Herbert v. Louisiana, Abbate v. United States, Bartkus v. Illinois, United States v. Wheeler, and Heath v. Alabama.
US v Blockburger. This case examines whether one crime "requires proof of a fact which the other does not." This test is commonly used to distinguish state and federal criminal law. If the test is satisfied, then the double jeopardy provision is not applicable. You must distinguish bewteen state and federal criminal law. If the Blockburger ratio is too challenging, then I refer you to this link. It's simple, but it's accurate. It outlines some of the major differences between state and federal law. The sentencing part is probably the most appropriate for the sake of this discussion.
http://www.federaldefense.com/pages/different.asp
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| In Durden v USA, the supreme court ruled that the "dual sovereignty doctrine" is a-ok, even if it's the same thing as double jeopardy |
This is an example of where you are going wrong. Durden never equated the dual sovereignty doctrine with a fith amendment violation. The case followed the Lanza precedent, and backed the dual sovereignty doctrine, but in contrast to your quote, the ratio expressly shows that the double jeopardy rule is not "the same thing" as the dual sovereignty doctrine. You need to understand that the dual sovereignty rule and the fith amendment co-exist because a man's actions can result in prosecution for two crimes, provided by two different sources of law, and by two different legal entities.''We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.'' (US v Lanza Id. at 382.)
Do you happen to have an interest in this area of law? You have made some decent arguments, but I think that your point would have been strengthened by citing some forfeiture cases. This is probably the best way to argue that violations of the fith amendment have taken place. The Supreme Court has dismissed such claims, but these arguments have some backing in academic circles. I don't happen to agree with them though  . Anyway, it makes a nice change to have some decent exchanges on Dave's for a change. |
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