[DRAFT] Double Jeopardy and Appeals

[Quelesh]

For previous threads for proposals which included the ban on double jeopardy, see:

1. Convention on Procedural Defenses
2. Habeas Corpus Act
3. Double Jeopardy Prohibition
4. Double Jeopardy Prohibition

(Human Rights / significant)

The World Assembly,

APPALLED by the practice of double jeopardy, or trying an individual more than once for the same alleged offense;

CONVINCED that freedom from this unjust practice is a cornerstone of any fair criminal justice system;

SEEKING to put an end to this injustice;

hereby MANDATES the following, subject to any limitations existing in prior international law:

Section 1: Double Jeopardy Prohibition

1. Once an individual has been acquitted or convicted, or a functional equivalent thereof, of a crime, and once all opportunities to appeal the outcome of the trial in accordance with this resolution have been exhausted, member states shall not try that individual for the same alleged criminal act again.

Section 2: General Appeals Provisions

2. All appeals filed in accordance with this resolution shall be made to an impartial adjudicator or an impartial panel of adjudicators ("appellate court").

3. Member states may, but are not required to, allow multiple levels of appeals (for example, an appeal to an intermediate-level court, and then an appeal to a court of last resort).

4. If an appellate court overturns a person's acquittal or conviction on appeal, member states may hold a new trial for that person on the charge of which he or she was previously acquitted or convicted, if such a new trial is allowed by law and by the ruling of the appellate court.

Section 3: Appeals by the Defense

5. Member states must allow the defense to appeal the outcome of a trial on the following grounds:
a. A question of law was decided incorrectly, affecting the outcome of the trial.
b. A procedural error was made which affected the outcome of the trial.
c. New exculpatory evidence has become available, the previous absence of which affected the outcome of the trial.
d. Perjury, bribery, corruption, judicial bias or prosecutorial misconduct affected the outcome of the trial.

6. Member states may, but are not required to, allow the defense to appeal the outcome of a trial on grounds other than those listed in clause 5 of this resolution.

Section 4: Appeals by the Prosecution

7. Member states may, but are not required to, allow the prosecution to appeal the outcome of a trial on the following grounds:
a. A question of law was decided incorrectly, affecting the outcome of the trial.
b. A procedural error, which was not the fault of the prosecution, was made which affected the outcome of the trial.
c. Perjury, bribery, corruption, judicial bias or misconduct by the defense affected the outcome of the trial.

8. Member states must prohibit the prosecution from appealing the outcome of a trial on any grounds other than those listed in clause 7 of this resolution.

Character count: 2,665

Previous drafts:

(Human Rights / significant)

The World Assembly,

APPALLED by the practice of double jeopardy, or trying an individual more than once for the same alleged offense;

CONVINCED that freedom from this unjust practice is a cornerstone of any fair criminal justice system;

SEEKING to put an end to this injustice;

hereby MANDATES the following, subject to any limitations existing in prior international law:

1. Once an individual has been finally acquitted or convicted, or a functional equivalent thereof, of a crime, member states shall not try that individual for the same alleged criminal act again, except in accordance with clause 2 of this resolution.

2. Member states may vacate an individual's conviction of a crime and grant the individual a new trial for that crime. If the individual is again convicted of the crime, the new sentence shall not be more severe than the old sentence, and any conditions of the old sentence that have been met shall count toward the completion of the new sentence.

3. Member states may choose to not pursue a retrial of an individual whose conviction of a crime has been vacated in accordance with clause 2. In such cases, the individual's criminal sentence for the crime must be immediately terminated.

Character count: 1,204

I'm open to well-meaning suggestions as to how this proposal can be improved, consistent with its aim of banning double jeopardy.

Alexandria Yadoru
Quelesian WA ambassador

[Sanctaria]

... This is the exact same as the one that's just been repealed.

This is getting old. The General Assembly has better things to be doing than massaging your ego.

[Quelesh]

(New post because I don't want this to be in the OP, for ease of editing later.)

The version of this proposal posted at this time is the same as the proposal that was recently at vote, but I plan on making some changes.

Originally, this proposal was intended to be a relatively simple prohibition of double jeopardy, leaving the issue of appeals to a future resolution. However, it seems to me that this approach doesn't work very well (my wording in clause 2 of the previous version of this proposal is rather awkward), and I now think that it's going to be necessary to more comprehensively address appeals.

I'm considering having multiple sections of the proposal, one which bans double jeopardy (probably worded something like: "one a person has been acquitted or convicted of a crime, and once all opportunities for the appeal of the outcome of the trial, in accordance with this resolution, have been exhausted, member states shall not try that person for the same alleged act again"), and one or more which stipulate the circumstances in which member states must, may and may not allow appeals by the defense and the prosecution.

This would make it more clear when appeals are allowed, and would set limits on them, while prohibiting retrials once appeals are exhausted.

I have a couple of ideas in this regard, but I'm open to well-meaning suggestions as well.

Alexandria Yadoru
Quelesian WA ambassador

[Flibbleites]

As a bowl of petunias once said, "Oh no, not again."

Bob Flibble
WA Representative

[Linux and the X]

While generally supporting this proposal, we would prefer to see a narrow exception for cases in which the original trial was invalid, even if the invalidation was not caused by the defendant.

[Zaklen]

Hell no. The resolution at vote is much more effective, as it protects people in reasonable nations from double jeopardy, without barring retrials for legitimate reasons such as substantial new evidence, or, like has happened in Zaklen when "Double Jeopardy Prohibition" #1 was a law, someone standing up and yelling "I did it!" immediately after they were convicted of murder.

[Quelesh]

While generally supporting this proposal, we would prefer to see a narrow exception for cases in which the original trial was invalid, even if the invalidation was not caused by the defendant.

Invalid how? Do you mean where a procedural error, or a mistaken application of law, affected the outcome of the trial? I'm open to that.

I'm considering allowing both defense and prosecution appeals on the grounds that an error of fact, an error on a question of law or a procedural mistake affected the outcome of the trial. Possibly perjury as well, though if the prosecution appeals an acquittal on the grounds that the defendant's claim of innocence was perjured, presumeably the prosecution would have to prove that.

Alexandria Yadoru
Quelesian WA ambassador

[Linux and the X]

Hell no. The resolution at vote is much more effective, as it protects people in reasonable nations from double jeopardy, without barring retrials for legitimate reasons such as substantial new evidence, or, like has happened in Zaklen when "Double Jeopardy Prohibition" #1 was a law, someone standing up and yelling "I did it!" immediately after they were convicted of murder.

New evidence is not a legitimate reason. If the prosecution did not have sufficient evidence, they should not have began the case.

While generally supporting this proposal, we would prefer to see a narrow exception for cases in which the original trial was invalid, even if the invalidation was not caused by the defendant.

Invalid how? Do you mean where a procedural error, or a mistaken application of law, affected the outcome of the trial? I'm open to that.

I'm considering allowing both defense and prosecution appeals on the grounds that an error of fact, an error on a question of law or a procedural mistake affected the outcome of the trial. Possibly perjury as well, though if the prosecution appeals an acquittal on the grounds that the defendant's claim of innocence was perjured, presumeably the prosecution would have to prove that.

Alexandria Yadoru
Quelesian WA ambassador

Quite reasonable.

[Auralia]

If you want to open this can of worms again, you should make very sure that you address all of the flaws in your previous attempt which led to its failure at vote.

[Sovreignry]

Hell no. The resolution at vote is much more effective, as it protects people in reasonable nations from double jeopardy, without barring retrials for legitimate reasons such as substantial new evidence, or, like has happened in Zaklen when "Double Jeopardy Prohibition" #1 was a law, someone standing up and yelling "I did it!" immediately after they were convicted of murder.

New evidence is not a legitimate reason. If the prosecution did not have sufficient evidence, they should not have began the case.

So if new techniques come about the evidence should be ignored? A nation that develops DNA testing should just ignore any and all new evidence? That sounds like the true miscarriage of justice here.

[Linux and the X]

If you want to open this can of worms again, you should make very sure that you address all of the flaws in your previous attempt which led to its failure at vote.

There were three flaws brought up in the repeal.
1) Banning trial de novo; this has been addressed.
2) The inability to retry a defendant in case of invalid trial; this is being addressed.
3) Concurrent jurisdiction; suggestions would, presumably, be welcome, though suggestions of allowing double jeopardy will probably not be included.

[Auralia]

If you want to open this can of worms again, you should make very sure that you address all of the flaws in your previous attempt which led to its failure at vote.

There were three flaws brought up in the repeal.
1) Banning trial de novo; this has been addressed.
2) The inability to retry a defendant in case of invalid trial; this is being addressed.
3) Concurrent jurisdiction; suggestions would, presumably, be welcome, though suggestions of allowing double jeopardy will probably not be included.

I'm not just referring to the repeal, but also comments from ambassadors for the draft that just failed at vote.

[Alqania]

"Appeals?! Appeals?!" Lord Raekevik interjected. "Just as I thought the Queendom could not be any more vehemently opposed to the numerous versions of the Double Jeopardy Prohibition, "Her Excellency" sees fit to advocate WA intervention in the right to appeal. Never! Never, I say, shall the Queendom accept any limitation on the right to appeal. It seems that since some Ambassadors and Delegates are above wasting time on small and unimportant things like listening, I shall have to parrot myself: Double Jeopardy and the right to appeals have NOTHING to do with each other! Ekkert! Nix! Get Your Excellency's hands off our criminal justice system! Finger weg! It would seem that the Quelesian Ambassador has just managed to become the greatest threat to human rights within criminal justice systems... I... I... I must admit that I lack words to describe the level of the Queendom's opposition to this self-righteous justicide."

[Auralia]

New evidence is not a legitimate reason. If the prosecution did not have sufficient evidence, they should not have began the case.

So if new techniques come about the evidence should be ignored? A nation that develops DNA testing should just ignore any and all new evidence? That sounds like the true miscarriage of justice here.

Quelesh's ideological basis for that statement (and correct me if I'm wrong) is that when balancing the state's interests in protecting public order with the right of the individual to a) not to be harassed by the state through the judicial system and b) not be convicted of a crime that they did not commit, the latter takes precedence.

I tend to agree. However, it's clear that many ambassadors here do not, which is why a compromise which allows limited prosecutorial appeal powers and retrials is a reasonable approach.

[Linux and the X]

There were three flaws brought up in the repeal.
1) Banning trial de novo; this has been addressed.
2) The inability to retry a defendant in case of invalid trial; this is being addressed.
3) Concurrent jurisdiction; suggestions would, presumably, be welcome, though suggestions of allowing double jeopardy will probably not be included.

I'm not just referring to the repeal, but also comments from ambassadors for the draft that just failed at vote.

The majority of the complaints seem to be "waaah, you didn't ask us what we thought of your amendments!", with the majority of the actual suggestions being incompatible with the concept of prohibiting double jeopardy.

[Auralia]

I'm not just referring to the repeal, but also comments from ambassadors for the draft that just failed at vote.

...with the majority of the actual suggestions being incompatible with the concept of prohibiting double jeopardy.

Is it feasible to prohibit double jeopardy to the standards required by Quelesh within the General Assembly? Haven't multiple attempts to pass this resolution illustrated that the answer to that question is no?

[Embolalia]

You can't even be bothered to edit a little before posting this? You are being completely intransigent, obstinate, inexorable, bloody-minded, pertinacious, and every other synonym for egotistically and unrelentingly adherent. Your ideas which have proven twice not to be what this assembly wants. Ambassador, if you want your name on a bloody plaque, donate to a university. If you want it etched in stone, grave markers are an option which would be much more pleasing to the membership than your insane demonstration of legislative tenaciousness.

You are a disgrace to this assembly, ambassador.

-E. Rory Hywel
WA Ambassador for Embolalia

[Southern Patriots]

Again?

[Firstaria]

Scentific Real Life studies had proven that when a rat discovers that doing something causes it to fail, the rat tries to do something better or changes his way in order to succeed. Same for EVERY INTELLIGENT CREATURE ON EARTH.

Quelesh doesn't. Draw your conclusion.

---

Also, ILLEGAL DUE TO DUPLICATION.

[Paper Flowers]

Also, ILLEGAL DUE TO DUPLICATION.

Only if a resolution is passed on the matter, at present there isn't one.

Deputy Ambassador Saunders

[Firstaria]

Also, ILLEGAL DUE TO DUPLICATION.

Only if a resolution is passed on the matter, at present there isn't one.

Deputy Ambassador Saunders

It will pass, because people will vote it just to make Quelesh shut up. Don't believe me? Read the topic about the Resolution.

[Linux and the X]

Only if a resolution is passed on the matter, at present there isn't one.

Deputy Ambassador Saunders

It will pass, because people will vote it just to make Quelesh shut up. Don't believe me? Read the topic about the Resolution.

Whether or not it can be legally submitted is entirely separate from whether or not it can be drafted. A proposal can be drafted before repealing anything in its way.

(Image)
You can't even be bothered to edit a little before posting this? You are being completely intransigent, obstinate, inexorable, bloody-minded, pertinacious, and every other synonym for egotistically and unrelentingly adherent. Your ideas which have proven twice not to be what this assembly wants. Ambassador, if you want your name on a bloody plaque, donate to a university. If you want it etched in stone, grave markers are an option which would be much more pleasing to the membership than your insane demonstration of legislative tenaciousness.

You are a disgrace to this assembly, ambassador.

-E. Rory Hywel
WA Ambassador for Embolalia

Obviously Quelesh is simply aiming to join the list of resolution authors. That they already are is irrelevant. Also irrelevant is that someone with no other aim would attempt a less controversial resolution than protecting civil rights.

[Mallorea and Riva]

When is it going to be submitted?

[Dagguerro]

*bursts out laughing before composing himself a little*

Are you serious? This has been removed and beaten several times now. You will NOT get a successful resolution on the books so long as it prevents nations from retrialing if substantial additional evidence is discovered; like a body or DNA evidence.

That is the crux of the problem many people have. And so long as it is not addressed then people are going to campaign against and repeal this. Every time.

- Lord Swift

[Cowardly Pacifists]

Edit: The version of this proposal currently in the OP is temporary; I intend to make substantial changes - read later posts in this thread for more information.
...
I'm posting this here mainly so I'll continue to have an active drafting thread for this particular project without having to use the previous at-vote thread. I'm open to well-meaning suggestions as to how this proposal can be improved, consistent with its aim of banning double jeopardy.

I've tried to stay out of this quagmire to the extend I could, but I must say that I am quite dismayed to see this posted so soon after the prior version was defeated. I realize and appreciate that Quelesh has promised "substantial changes" to this draft, but the Queleshi delegation must have known that posting a new draft of this proposal within minutes of defeat would be viewed as a provocative gesture. I simply don't understand why your delegation could not wait until after you had time to make substantial changes before re-posting. I view this as a snub to those Ambassadors who opposed the Double Jeopardy Prohibition and reveled in its defeat (which may also have been inappropriate behavior).

This whole Double Jeopardy/Habeas Corpus business has gotten way out of hand. I find myself in support of the Moronist government's "Preventing Multiple Trials" proposal (even though I have serious doubts about whether it would really prevent multiple trials) simply to trouble the constant debate on Double Jeopardy caused by this proposal and its forbears. I realize that passing Preventing Multiple Trials would not end the debate, but it would at least stall the debate while we instead argued over whether or not to repeal PMT in the name of passing this or some other strong Double Jeopardy proposal.

Ultimately, I regret what the end result of repealing GA#67 has become. Had I known back then what deluge would follow the repeal of GA#67, I would have cast my vote differently.

In the end, we must always remember that whatever our individual political beliefs, the World Assembly is a democratic institution. We may fight tooth and nail against each other on policy - and we may even condescend to playful insults - but we must ultimately compromise on a great many matters if we are to accomplish anything substantive. Striking a hard line on principle is a good thing, but not when it cripples the ability of this Assembly to function or hardens Ambassadors against otherwise good reforms.

Best Regards.