Double Jeopardy and Ne Bis in Idem in Common Law and Civil Law Jurisdictions

Abstract

This chapter explores the main issues as well as the principal commonalities and differences found in the civil law and common law traditions with regard to the legal doctrine of double jeopardy (ne bis in idem). It begins with an overview of double jeopardy, along with the related concepts of res judicata and lis pendens. It then considers the supporting and conflicting rationales for the prohibition of multiple criminal procedures and the historical origins of the double jeopardy rule. It also discusses the prohibition of double jeopardy as embedded in international human rights law, along with the idem factum approach and the idem crimen approach to addressing the double jeopardy prohibition. The chapter also examines exceptions to res judicata and concludes with an analysis of other legal tools that can effectuate the protection against multiple prosecutions for the same criminal occurrence.