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judicial notice n. the authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rain fall and temperature records, known historic events, or the fact that ice melts in the sun.

A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action.

When a court takes judicial notice of a certain fact, it obviates the need for parties to prove the fact in court. Ordinarily, facts that relate to a case must be presented to the judge or jury through testimony or tangible evidence. However, if each fact in a case had to be proved through such presentation, the simplest case would take weeks to complete. To avoid burdening the judicial system, all legislatures have approved court rules that allow a court to recognize facts that constitute common knowledge without requiring proof from the parties.

On the federal trial

Evidence for U.S. District Courts and Magistrates. Rule 201 provides, in part, that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

court level, judicial

notice is recognized in




Under rule 201 a trial court must take judicial notice of a well-known fact at the request of one of the parties, if the court is provided with information supporting the fact. A court also has the option to take judicial notice at its discretion, without a request from a party.

Rule 201 further provides that a court may take judicial notice at any time during a proceeding. If a party objects to the taking of judicial notice, the court must give that party an opportunity to be heard on the issue. In a civil jury trial, the court must inform the jury that it must accept the judicially noticed facts in the case as conclusively proved. In a criminal trial by jury, the court must instruct the jury "that it may, but is not required to, accept as conclusive any fact judicially noticed." All states have statutes that are virtually identical to rule 201.

The most common judicially noticed facts include the location of streets, buildings, and geographic areas; periods of time; business customs; historical events; and federal, state, and International Law. Legislatures also maintain statutes that give courts the power to recognize certain facts in specific situations. For example, in Idaho any document affixed with the official seal of the state Public Utilities commission must be judicially noticed by all courts (Idaho Code § 61-209 [1996]). In Hawaii, when a commercial vehicle is cited for violating vehicle equipment regulations, a trial court must take judicial notice of the driver's subordinate position if the driver works for a company that owns the vehicle (Haw. Rev. Stat. § 291-37 [1995]).

The danger of judicial notice is that, if abused, it can deprive the fact finder of the opportunity to decide a contestable fact in a case. In Walker v. Halliburton Services, 654 So. 2d 365 (La. App. 1995), Johnny Walker fell from a tank truck approximately ten feet to a concrete floor. Walker sought Workers' Compensation benefits for his injuries, and his claim was denied by the Office of Workers' Compensation.

At the application hearing, the hearing officer stated that it was her experience that a soft-tissue injury heals in six weeks. She then took judicial notice of the fact that a soft-tissue injury heals in six weekspreventing Walker from contesting that propositionand disallowed Walker's claim. On appeal the Louisiana Court of Appeal, Third Circuit, reversed the decision and ordered the payment of workers' compensation benefits. According to the court, it was a clear error of law for the hearing officer to take judicial notice of such intricate medical knowledge.

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted. This is done upon the request of the party seeking to rely on the fact at issue. Facts and materials admitted under judicial notice are accepted without being formally introduced by awitness or other rule of evidence, and even if one party wishes to lead evidence to the contrary.

Judicial notice is frequently used for the simplest, most obvious common sense facts, such as which day of the week corresponded to a particular calendar date.

Judicial notice in the Federal Rules of Evidence

In the United States, Article II of the Federal Rules of Evidence ("FRE") addresses judicial notice in federal courts, and this article is widely copied by U.S. States. FRE 201(b)) permit judges to take judicial notice of two categories of facts:

1. Those that are "generally known within the territorial jurisdiction of the trial court" (e.g. locations of streets within the court's jurisdiction) or

2. Those that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" (e.g. the day of the week on a certain date). [1]

The FRE also notes that judicial notice may be permissive or mandatory. If it is permissive, then the court may choose to take judicial notice of the fact proffered, or may reject the request and require the party to introduce evidence in support of the point. If it is mandatory, then the court must take judicial notice of the fact proffered. Although the FRE does not expand upon the kinds of facts that would fall into one category or another, courts have ruled that judicial notice must be taken of federal public laws and treaties, state public laws, and official regulations of both federal and local government agencies.

[edit]Judicial notice and the burden of proof

FRE 201(f) establishes that the effect of the court taking judicial notice is different in civil and criminal trials. In a civil trial, the fact taken notice of is thereby conclusively proved. In a criminal case, the defendant has the right to contest every fact that might tend to incriminate him. Therefore, the court taking judicial notice would simply allow the jury to make the finding that the court took notice of, but would not require this outcome, and would not prevent the defense from presenting evidence to rebut the noticed fact.

[edit]Judicial notice in foreign affairs

Legal disputes about foreign affairs are generally settled by judicial notice by obtaining the information directly from the office of the Secretary of State (in the United States) or theForeign Secretary (in the United Kingdom). For example, if a litigant in an extradition hearing attempted to argue that Israel was not a sovereign state, a statement from the Secretary of State that the U.S. recognized Israel as a sovereign state would settle the issue and no evidence could be led to the contrary.

Recently, [when?] Court of Appeals decisions regarding the legal rights of detainees of Guantanamo Bay took judicial notice of Cuba having no sovereignty over the U.S. naval base in that location despite claims by the United States government that it was Cuban territory and not subject to the application of United States law.

Federal courts and the courts of most jurisdictions have determined that matters of foreign law are subject

to permissive judicial notice.

[edit]Official notice

During the prosecution phase of U.S. patent applications, a similar concept to judicial notices are applied

by patent examiners, but the process is referred to as taking "official notice". In a typical patent claim

rejection, the examiner has to present prima facie evidence (usually as a published document) that the subject matter of a rejected claim was known prior to the application for patent by the inventor. However,

when the limitation of the claim is so trivial or well known in the prior art, examiners can take official notice

to that fact. Patent applicants are then allowed to traverse the official notice given by an examiner, in

which case the examiner must present an evidentiary document to prove the fact or limitation is well known. [2]

[edit]Historical examples

Abraham Lincoln used judicial notice in the trial of William Armstrong to establish that a claim by a witness to have used moonlight to see events could not have taken place since there was no visible moon that evening. This led to Armstrong's acquittal. [3]

In the 1934 United States Supreme Court case, Home Loan Building & Loan Association v. Blaisdell, Mr.

Chief Justice Hughes took judicial notice of the economic conditions of the Great Depression to help conclude that a state of emergency existed, and thus the State of Minnesota could properly impose on the contracts made by private persons to promote a broad societal interest. Specifically, the Court upheld

a Minnesota statute preventing loan companies from foreclosing on homes before 1935, despite mortgage agreements allowing companies the right to do so. [4]

In the 1981 case of Mel Mermelstein v. Institute for Historical Review, the Superior Court of Los Angeles

County took judicial notice of the fact that "Jews were gassed to death at the Auschwitz Concentration Camp in Poland during the summer of 1944". [5]

res judicata (rayz judy-cot-ah) n. Latin, the thing has been judged, meaning the issue before the court has already been decided by another court, with the same parties. Therefore, the court will dismiss the case before it as being useless. Example: an Ohio court determines that John is the father of Betty's child. John cannot raise the issue again in another state. Sometimes called res adjudicata.

RES JUDICATA, practice. The decision of a legal or equitable issue, by a court of competent jurisdiction. 2. It is a general principle that such decision is binding and conclusive upon all other courts of concurrent power. This principle pervades not only our own, but all other systems of jurisprudence, and has become a rule of universal law, founded on the soundest policy. If, therefore, Paul sue Peter to recover the amount due to him upon a bond and on the trial the plaintiff fails to prove the due execution of the bond by Peter, in consequence of which a verdict is rendered for the defendant, and judgment is entered thereupon, this judgment, till reversed on error, is conclusive upon the parties, and Paul cannot recover in a subsequent suit, although he may then be able to prove the due execution of the bond by

Peter, and that the money is due to him, for, to use the language of the civilians, res judicata facit ex albo


3. The constitution of the United States and the amendments to it declare, that no fact, once tried by a jury, shall be otherwise reexaminable in any court of the United States than according to the rules of the common law. 3 Pet. 433; Dig. 44, 2; and Voet, Ibid; Kaime's Equity, vol. 2, p. 367; 1 Johns. Ch. R. 95; 2 M. R. 142; 3 M. R. 623; 4 M. R. 313, 456, 481; 5 M. R. 282, 465; 9 M. R. 38; 11 M. R. 607; 6 N. S. 292; 5








recto curvum.

N. S. 664; 1 L. R. 318; 8 L. R. 187; 11 L. R. 517. Toullier, Droit Civil Francais, vol. 10, No. 65 to 259. 4. But in order to make a matter res judicata there must be a concurrence of the four conditions following, namely: 1. Identity in the thing sued for. 2. Identity of the cause of action; if, for example, I have claimed a right of way over Blackacre, and a final judgment has been rendered against me, and afterwards I purchase Blackacre, this first decision shall not be a bar to my recovery, when I sue as owner of the land, and not for an easement over it, which I claimed as a right appurtenant to My land Whiteacre. 3. Identity of persons and of parties to the action; this rule is a necessary consequence of the rule of natural justice: ne inauditus condemnetur. 4. Identity of the quality in the persons for or against whom the claim is made; for example, an action by Peter to recover a horse, and a final judgment against him, is no bar to an action by Peter, administrator of Paul, to recover the same horse. Vide, Things adjudged.

[Latin, A thing adjudged.] A rule that a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit.

The U.S. legal system places a high value on allowing a party to litigate a civil lawsuit for money damages only once. U.S. courts employ the rule of res judicata to prevent a dissatisfied party from trying to litigate the issue a second time.

Res judicata will be applied to a pending lawsuit if several facts can be established by the party asserting the res judicata defense. First, the party must show that a final judgment on the merits of the case had been entered by a court having jurisdiction over the matter. This means that a final decision in the first lawsuit was based on the factual and legal disputes between the parties rather than a procedural defect, such as the failure to serve the defendant with legal process.

Once a court makes a final decision, it enters a final judgment in the case. The judgment recites pertinent data about the case, such as the names of the parties, the fact that a jury verdict was rendered, and the disposition made. The judgment is filed with the court administrator for that judicial jurisdiction.

The party asserting res judicata, having introduced a final judgment on the merits, must then show that the decision in the first lawsuit was conclusive as to the matters in the second suit. For example, assume that the plaintiff in the first lawsuit asserted that she was injured in an auto accident. She sues the driver of the other auto under a theory of Negligence. A jury returns a verdict that finds that the defendant was not negligent. The injured driver then files a second lawsuit alleging additional facts that would help her prove that the other driver was negligent. A court would dismiss the second lawsuit under res judicata because the second lawsuit is based on the same Cause of Action (negligence) and the same injury claim.

Under the companion rule of Collateral Estoppel, the plaintiff will not be allowed to file a second lawsuit for money damages using a different cause of action or claim. Under collateral estoppel, the parties are precluded from litigating a second lawsuit using a different cause of action based on any issue of fact common to both suits that had been litigated and determined in the first suit. For example, the plaintiff who lost her auto accident case based on a theory of negligence cannot proceed with a second lawsuit based on an allegation that the driver intentionally struck her auto, thus making it an intentional TORT cause of action. A court would assert collateral estoppel because the plaintiff could have alleged an intentional tort cause of action in the original complaint.

The application of res judicata and collateral estoppel produces finality for the parties and promotes judicial economy. Parties know that when final judgment is entered and all appeals are exhausted, the case is over and the decision will be binding on all issues determined in the lawsuit.

Res judicata or res iudicata (RJ), also known as claim preclusion, is the Latin term for "a matter [already] judged", and may refer to two concepts: in both civil law and common law legal systems, a case

in which there has been a final judgment and is no longer subject to appeal; [1] and the legal doctrine

meant to bar (or preclude) continued litigation of such cases between the same parties, which is different between the two legal systems. In this latter usage, the term is synonymous with "preclusion".

In the case of res judicata, the matter cannot be raised again, either in the same court or in a different

court. A court will use res judicata to deny reconsideration of a matter. [2]

The legal concept of res judicata arose as a method of preventing injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury.

In common law

The principle of res judicata may be used either by a judge or a defendant.

Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment.

A defendant in a lawsuit may use res judicata as defense. The general rule is that a plaintiff who

prosecuted an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where:

the claim is based on the same transaction that was at issue in the first action;

the plaintiff seeks a different remedy, or further remedy, than what was obtained in the first action;

the claim is of such nature as could have been joined in the first action. [3]

Once a bankruptcy plan is confirmed in court action, the plan is binding on all parties involved. Any question regarding the plan which could have been raised may be barred by res judicata. [4]

The Seventh Amendment to the United States Constitution provides that no fact having been tried by a jury shall be otherwise re-examinable in any court of the United States or ofany state than according to the rules of law.

For res judicata to be binding, several factors must be met:

identity in the thing at suit;

identity of the cause at suit;

identity of the parties to the action;

identity in the designation of the parties involved;

whether the judgment was final;

whether the parties were given full and fair opportunity to be heard on the issue.

Regarding designation of the parties involved, a person may be involved in an action while filling a given office (e.g. as the agent of another), and may subsequently initiate the same action in a differing capacity (e.g. as his own agent). In that case res judicata would not be available as a defense unless the defendant could show that the differing designations were not legitimate and sufficient.


Res judicata includes two related concepts: claim preclusion and issue preclusion (also called collateral estoppel or issue estoppel), though sometimes res judicata is used more narrowly to mean only claim preclusion.

Claim preclusion bars a suit from being brought again on an event which was the subject of a previous legal cause of action that has already been finally decided between the parties or those in privity with a party.

Issue preclusion bars the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier case.

It is often difficult to determine which, if either, of these concepts apply to later lawsuits that are seemingly related, because many causes of action can apply to the same factual situation and vice versa. The scope of an earlier judgment is probably the most difficult question that judges must resolve in applying res judicata. Sometimes merely part of the action will be affected. For example, a single claim may be struck from a complaint, or a single factual issue may be removed from reconsideration in the new trial.


Res judicata is intended to strike a balance between competing interests. Its primary purpose is to assure an efficient judicial system. [5]

Justice Stewart explained the need for this legal precept as follows:

Federal courts have traditionally adhered to the related doctrines of res judicata (claim preclusion)

and collateral estoppel (issue preclusion). Under RJ, a final judgment on the merits of an action

precludes the parties

action. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its

judgment, that decision may preclude re-litigation of the issue in a suit on a different cause of

action involving a party to the first cause. As this court and other courts have often recognized,

res judicata and collateral estoppel relieve parties of the costs and vexation of multiple lawsuits,

conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on a

judication. [6]

from re-litigating issues that were or could have been raised in that

[edit]Exceptions to application

Res judicata does not restrict the appeals process, which is considered a linear extension of the same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals are considered the appropriate manner by which to challenge a judgment rather than trying to start a new trial. Once the appeals process is exhausted or waived, res judicata will apply even to a judgment that is contrary to law. In states that permit a judgment to be renewed, a lawsuit to renew the judgment would not be barred by res judicata, however in states that do not permit renewal by action (as opposed to renewal by scire facias or by motion), such an action would be rejected by the courts as vexatious.

There are limited exceptions to res judicata that allow a party to attack the validity of the original judgment, even outside of appeals. These exceptionsusually called collateral attacksare typically based on procedural or jurisdictional issues, based not on the wisdom of the earlier court's decision but its authority or on the competence of the earlier court to issue that decision. A collateral attack is more likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such as under federal governments, or when a domestic court is asked to enforce or recognize the judgment of a foreign court.

In addition, in matters involving due process, cases that appear to be res judicata may be re-litigated. An example would be the establishment of a right to counsel. People who have had liberty taken away (i.e., imprisoned) may be allowed to be re-tried with a counselor as a matter of fairness.

RJ may not apply in cases involving the England reservation. If a litigant files suit in federal court, and that court stays proceedings to allow a state court to consider the questions of state law, the litigant may inform the state court that he reserves any federal-law issues in the action for federal court. If he makes such a reservation, RJ would not bar him from returning the case to federal court at conclusion of action in state court. [7]

RJ may be avoided if claimant was not afforded a full and fair opportunity to litigate the issue decided by a state court. He could file suit in a federal court to challenge the adequacy of the state's procedures. In that case the federal suit would be against the state and not against the defendant in the first suit. [3]

RJ may not apply if consent (or tacit agreement) is justification for splitting a claim. If plaintiff splits a claim in the course of a suit for special or justifiable reasons for doing so, a judgment in that action may not have the usual consequence of extinguishing the entire claim.

[edit]Failure to apply

When a subsequent court fails to apply res judicata and renders a contradictory verdict on the same claim or issue, if a third court is faced with the same case, it will likely apply a "last in time" rule, giving effect only to the later judgment, even though the result came out differently the second time. This situation is not unheard of, as it is typically the responsibility of the parties to the suit to bring the earlier case to the judge's attention, and the judge must decide how broadly to apply it, or whether to recognize it in the first place. See Americana Fabrics, Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1529-30 (9th Cir. 1985).

In civil law

The doctrine of res judicata in nations that have a civil law legal system is much narrower in scope than in common law nations.

In order for a second suit to be dismissed on a motion of res judicata in a civilian jurisdiction, the trial must be identical to the first trial in the following manner: (1) identical parties, (2) identical theories of recovery, and (3) identical demands in both trials. In other words, the issue preclusion or collateral estoppel found in the common law doctrine of res iudicata is not present in the civilian doctrine. In addition if all else is equal between the two cases, minus the relief sought, there will be no dismissal based on res judicata in a civil law jurisdiction.

While most civilian jurisdictions have slightly broadened the doctrine through multiple exceptions to these three requirements, there is no consensus on which exceptions ought to be allowed.

Note: Louisiana (USA), a civil law jurisdiction, has in the last twenty years begun to follow the common law doctrine of res judicata.

[edit]In international law

Arguably, res judicata is a general principle of international law under Article 38 (1)(c) of the International Court of Justice Statute. "The Court, whose function is to decide in accordance with international law such

c. the general principles of law recognized by civilized

disputes as are submitted to it, shall apply:

Similar provisions are also found in the International Covenants on Civil and Political Rights, and Article 4 of Protocol 7 of the European Convention on Human Rights. However, in the two said conventions, the application of res judicata is restricted to criminal proceedings only. In the European Convention, reopening of a concluded criminal proceedings is possible if -

(a) it is in accordance with the law and penal procedure of the State concerned; (b) there is evidence of new or newly discovered facts, or (c) if there has been a fundamental defect in the previous proceedings,

which could affect the outcome of the case.

[edit]In other uses

The term is also sometimes used in related contexts. During the release of the SCOTUS judgement on the Affordable Care Act, the writers of SCOTUSBlog described how their interpretation of the judgement (that the law had been upheld) was challenged by their readers solely on the basis that other news networks had made the (erroneous) call earlier than them, thus giving their interpretation a veneer of respectability on the basis of having been the first. [10]

Res judicata

Literally, it means a matter adjudged, a thing judicially acted upon or decided; a thing or matter settled by

judgment. In res judicata, the judgment in the first action is considered conclusive as to every matter

offered and received therein, as to any other admissible matter which might have been offered for that

purpose, and all other matters that could have been adjudged therein. Res judicata is an absolute bar to a

subsequent action for the same cause; and its requisites are: (a) the former judgment or order must be

final; (b) the judgment or order must be one on the merits; (c) it must have been rendered by a court

having jurisdiction over the subject matter and parties; (d) there must be between the first and second

actions, identity of parties, of subject matter and of causes of action. [1]

double jeopardy n. placing someone on trial a second time for an offense for which he/she has been

previously acquitted, even when new incriminating evidence has been unearthed. This is specifically

shall any person be

subject for the same offence [sic] to be twice put in jeopardy of life or limb

person may be tried for a different crime based on some of the same facts which were used to try him/her when he/she was acquitted. A prime example is the use of the Federal Civil Rights Act to charge a person

prohibited by the Fifth Amendment to the U. S. Constitution, which states: " "


However, in rare instances a

with violation of another's civil rights by killing him, after a state murder case had resulted in an acquittal, as happened in the 1994 trials for the death of civil rights leader Medgar Evers and freedom riders Andrew Goldman, Michael Schwerner, James Chaney, and Viola Liuzzo.

A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense. The evil sought to be avoided by prohibiting double jeopardy is double trial and double conviction, not necessarily double punishment.

The Fifth Amendment to the U.S. Constitution provides, "No person shall … be subject for the same offence [sic] to be twice put in jeopardy of life or limb." This provision, known as the Double Jeopardy Clause, prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion, or imposing more than one punishment for a single offense. Each of the 50 states offers similar protection through its own constitution, statutes, and Common Law.

Five policy considerations underpin the double jeopardy doctrine: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments that the legislature has not authorized.

Double jeopardy is one of the oldest legal concepts in Western civilization. In 355 B.C., Athenian statesman Demosthenes said, "[T]he law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest ofJustinian I in A.D. 533. The principle also survived the Dark Ages (A.D. 4001066), notwithstanding the deterioration of other Greco-Roman legal traditions, through Canon Law and the teachings of early Christian writers.

In England, the protection against double jeopardy was considered "a universal Maxim of the common law" (United States v. Wilson, 420 U.S. 332, 340, 95 S. Ct. 1013, 1020, 43 L. Ed. 2d 232 [1975]) and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). Nonetheless, the English double jeopardy doctrine was extremely narrow. It applied only to defendants who were accused of capital felonies, and only after conviction or acquittal. It did not apply to cases that had been dismissed prior to final judgment, and it was not immune from flagrant abuse by the Crown.

The American colonists, who were intimately familiar with Coke, Blackstone, and the machinations of the Crown, expanded the protection against double jeopardy, making it applicable to all crimes. Yet some perceived James Madison's original draft of the Double Jeopardy Clause as being too broad. It provided, "No person shall be subject … to more than one punishment or one trialfor the same offense" (emphasis added) (United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897 104 L. Ed. 2d 487 [1989]). Several House members objected to this wording, arguing that it could be misconstrued to prevent defendants from seeking a second trial on appeal following conviction. Although the Senate later amended the language to address this concern, the final version ratified by the states left other questions for judicial interpretation.

Double jeopardy litigation revolves around four central questions: (1) In what type of legal proceeding does double jeopardy protection apply? (2) When does jeopardy begin, or, in legal parlance, attach? (3) When does jeopardy terminate? (4) What constitutes successive prosecutions or punishments for the same offense? Although courts have answered the second and third questions with some clarity, they continued to struggle over the first and last.

Where Jeopardy Applies

Only certain types of legal proceedings invoke double jeopardy protection. If a particular proceeding does not place an individual in jeopardy, then subsequent proceedings against the same individual for the same conduct are not prohibited. The Fifth Amendment suggests that the protection against double jeopardy extends only to proceedings that threaten "life or limb." Nevertheless, the U.S. Supreme Court has established that the right against double jeopardy is not limited to capital crimes orCorporal Punishment, but that it extends to all felonies, misdemeanors, and juvenile-delinquency adjudications, regardless of the applicable punishments.

In Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the U.S. Supreme Court ruled that the federal Double Jeopardy Clause is applicable to state and federal prosecutions. Prior to this ruling, an individual who was accused of violating state law could rely only on that particular state's protection against double jeopardy. Some states offered greater protection against double jeopardy than did others. The Court, relying on the doctrine of incorporation, which makes fundamental principles in the Bill of Rights applicable to the states through the EQUAL PROTECTION CLAUSE of the Fourteenth Amendment, said this was not permissible. The right against double jeopardy is so important, the Court concluded, that it must be equally conferred upon the citizens of every state. Under Benton, no state may provide its residents with less protection against double jeopardy than that offered by the federal Constitution.

The U.S. Supreme Court has also held that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude ordinary civil or administrative proceedings against a person who already has been prosecuted for the same act or omission. Nor is prosecution barred by double jeopardy if it is preceded by a final civil or administrative determination on the same issue.

Courts have drawn the distinction between criminal proceedings on the one hand, and civil or administrative proceedings on the other, based on the different purposes served by each. Criminal proceedings are punitive in nature and serve two primary purposes: deterrence and retribution. Civil proceedings are more remedial; their fundamental purpose is to compensate injured persons for any losses incurred. Because civil and criminal remedies fulfill different objectives, a government may provide both for the same offense.

The multiple legal proceedings brought against O. J. (Orenthal James) Simpson in the death of Nicole Brown Simpson and Ronald Lyle Goldman illustrate these various objectives. The state of California prosecuted Simpson for the murders of his former wife and her friend. Despite Simpson's acquittal in the criminal case, three civil suits were filed against him by the families of the two victims. The criminal proceedings were instituted with the purpose of punishing Simpson, incarcerating him, and deterring others from similar behavior. The civil suits were intended to make the victims' families whole by compensating them with money damages for the losses they had suffered.

The distinctions between criminal and civil proceedings and between punitive and remedial remedies may appear semantic, but they raise real legal issues. Courts have recognized that civil remedies may advance punitive goals. When they do, double jeopardy questions surface. For example, a civil Forfeiture or civil fine, although characterized by the legislature as remedial, becomes punitive when the value of the property seized or the amount of the fine imposed is "overwhelmingly disproportionate" to society's loss (Halper). This principle was exemplified when the U.S. Supreme Court prohibited the federal government from seeking a $130,000 civil penalty against a man who previously had been sentenced to prison for the same offense of filing $585 worth of false Medicare claims (Halper). The Court concluded that the gross disparity between the fine imposed and society's economic loss reflected a punitive remedial aim.

Conversely, many courts have ruled that Punitive Damages awarded in civil suits are not sufficiently criminal for double jeopardy purposes when the plaintiff seeking those damages is a private party, not the state. This ruling can be best explained by noting that the Bill of Rights guarantees protection only against government action. It does not create a system of rights and remedies for disputes between private citizens, as do the laws of contracts and TORTS. Courts have not determined whether punitive damages

recovered by the government in a civil suit would bar subsequent prosecution, nor have they agreed whether a number of administrative proceedings can be uniformly characterized as punitive or remedial. Cases involving the revocation of professional licenses, driving privileges, Probation, and Parole have divided courts over the purposes underlying these proceedings.

When Jeopardy Attaches

Courts have provided much clearer guidance on the question of when jeopardy attaches, or begins. This question is crucial to answer because any action taken by the government before jeopardy attaches, such as dismissal of the indictment, will not prevent later proceedings against a person for the same offense. Once jeopardy has attached, the full panoply of protection against multiple prosecutions and punishments takes hold.

The U.S. Supreme Court has held that jeopardy attaches during a jury trial when the jury is empanelled. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn. Jeopardy begins in juvenile-delinquency adjudications when the court first hears evidence. If the defendant or juvenile enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.

When Jeopardy Terminates

Determining when jeopardy terminates is no less important, but somewhat more complicated. Once jeopardy has terminated, the government may not hail someone into court for additional proceedings on the same matter without raising double jeopardy questions. If jeopardy does not terminate at the conclusion of one proceeding, it is said to be continue, and further criminal proceedings are permitted. Jeopardy can terminate in four instances: after acquittal; after dismissal; after a mistrial; and on appeal after conviction.

A jury's verdict of acquittal terminates jeopardy, and it may not be overturned on appeal even if it is

contrary to overwhelming proof of a defendant's guilt and derived from a trial that was rife with reversible

error. This elemental maxim of double jeopardyJurisprudence entrusts the jury with the power to nullify criminal prosecutions that are tainted by egregious police, prosecutorial, or judicial misconduct.

A jury also may impliedly acquit a defendant. If a jury has been instructed by the judge on the elements of

a particular crime and a Lesser Included Offense, and the jury returns a guilty verdict as to the lesser

offense but is silent as to the greater one, then reprosecution for the greater offense is barred by the Double Jeopardy Clause. For example, a jury that has been instructed as to the crimes of first- and second-degree murder may impliedly acquit the defendant of first-degree murder by returning only a guilty verdict as to murder in the second degree. A not-guilty verdict as to the greater offense is inferred from the silence.

A dismissal is granted by the trial court for errors and defects that operate as an absolute barrier to

prosecution. It may be entered before a jury has been impaneled, during the trial, or after a conviction.

But jeopardy must attach before a dismissal implicates double jeopardy protection.

Once jeopardy attaches, a dismissal granted by the court for insufficient evidence terminates it. Such a dismissal also bars further prosecution, with one exception: The prosecution may appeal a dismissal entered after the jury has returned a guilty verdict. If the appellate court reverses the dismissal, the guilty verdict may be reinstated without necessitating a second trial. The state may not appeal a dismissal granted for lack of evidence after a case has been submitted to a jury, but before a verdict has been reached.

Reprosecution is permitted, and jeopardy continues, when the court dismisses the case on a motion by the defendant for reasons other than sufficiency of the evidence. For example, a court may dismiss a case when the defendant's right to aSpeedy Trial has been denied by prosecutorial pretrial delay. The U.S. Supreme Court has held that no double jeopardy issue is triggered when defendants obtain dismissal for reasons that are unrelated to their guilt or innocence (see United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 [1978]).

A mistrial is granted when it has become impracticable or impossible to finish a case. Courts typically

declare a mistrial when jurors fail to reach a unanimous verdict. Like a dismissal, a mistrial that is declared at the defendant's behest will not terminate jeopardy or bar reprosecution. Nor will a mistrial

preclude reprosecution when declared with the defendant's consent. Courts disagree as to whether a defendant's mere silence is tantamount to consent.

A different situation is presented when a mistrial is declared over the defendant's objection.

Reprosecution is then allowed only if the mistrial resulted from "manifest necessity," a standard that is

more rigorous than "reasonable necessity," and less exacting than "absolute necessity." A mistrial that could have been reasonably avoided terminates jeopardy, but jeopardy continues if a mistrial was unavoidable.

The manifest-necessity standard has been satisfied where mistrials have resulted from defective indictments, disqualified or deadlocked jurors, and procedural irregularities willfully occasioned by the defendant. Manifest necessity is never established for mistrials resulting from prosecutorial or judicial manipulation. In determining manifest necessity, courts balance the defendant's interest in finality against society's interest in a fair and just legal system.

Every defendant has the right to appeal a conviction. If the conviction is reversed on appeal for insufficient evidence, the reversal is treated as an acquittal, and further prosecution is not permitted. However, the defendant may be reprosecuted when the reversal is not based on a lack of evidence. The grounds for such a reversal include defective search warrants, unlawful seizure of evidence, and other

so-called technicalities. Retrials in these instances are justified by society's interest in punishing the guilty.

A defendant's countervailing interests are subordinated when a jury's verdict is overturned for reasons

that are unrelated to guilt or innocence.

The interests of accused individuals are also subordinated when courts permit prosecutors to seek a more severe sentence during the retrial of a defendant whose original conviction was reversed on appeal. Courts have suggested that defendants who appeal their convictions assume the risk that a harsher sentence will be imposed during reprosecution. However, in most circumstances, courts are not permitted

to impose a death sentence on a defendant during a second trial when the jury recommended life in

prison during the first. The recommendation of life imprisonment is construed as an acquittal on the issue

What Constitutes the Same Offense

The final question that courts must resolve in double jeopardy litigation is whether successive prosecutions or punishments are geared toward the same offense. Jeopardy may already have attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. Courts have analyzed this question in several ways, depending on whether the state is attempting to reprosecute a defendant or to impose multiple punishments.

At common law, a single episode of criminal behavior produced only one prosecution, no matter how

many wrongful acts were committed during that episode. Under current law, a proliferation of overlapping

and related offenses may be prosecuted as separate crimes stemming from the same set of

circumstances. For example, an individual who has stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, Kidnapping, and molestation. This development has significantly enlarged prosecutors' discretion over the charging process.

The U.S. Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), in which it wrote that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact that the other offenses do not require. Blockburger requires courts to examine the elements of each offense as they are delineated by statute, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden of demonstrating that within a pair or group of offenses, each has at least one mutually exclusive element. If any one offense is wholly subsumed by another, such as a lesser included offense, the two offenses are deemed to be the same, and punishment is allowed for only one.

Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But courts have used several other methods to determine whether successive prosecutions apply the same offense. Collateral Estoppel, which prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment, is one such method. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the U.S. Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men during a poker game. A jury had already acquitted the defendant of robbing one of the other players. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, it was disallowed because the defendant had already been declared not guilty of essentially the same crime.

The "same-transaction" analysis, which many state courts use to bar successive prosecutions, requires the prosecution to join all offenses that were committed during a continuous interval and that both share a common factual basis and display a single goal or intent. Although Justices WILLIAM J. BRENNAN JR., WILLIAM O. DOUGLAS, and Thurgood Marshall endorsed the same-transaction test, no federal court has ever adopted it.

State and federal courts have employed the "actual-evidence" test in order to preclude successive prosecutions for the same offense. Unlike Blockburger, which demands that courts examine the statutory elements of proof, the actual-evidence test requires courts to compare the evidence that actually has been introduced during the first trial with the evidence that the prosecution seeks to introduce at the second one. The offenses are considered to be same when the evidence that is necessary to support a conviction for one offense would be sufficient to support a conviction for the other.

Under the "same-conduct" analysis, the government is forbidden to prosecute an individual twice for the same criminal behavior, regardless of the actual evidence introduced during trial or the statutory elements of the offense. In Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the U.S. Supreme Court applied this analysis to prevent a prosecution for a vehicular Homicide that resulted from drunk driving, when he earlier

had been convicted of driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's Negligence without proof of his intoxication. Although Grady was abandoned by the Supreme Court three years later, the same-conduct analysis is still used by state courts when they interpret their own constitutions and statutes.

The dual-sovereignty doctrine received national attention during the early 1990s, when two Los Angeles police officers were convicted in federal court for violating the Civil Rights of RODNEY KING during a brutal, videotaped beating, even though they previously had been acquitted in state court for excessive use of force (United States v. Koon, 833 F. Supp. 769 (C.D. Cal. 1993), aff'd, 34 F.3d 1416 (9th Cir. 1994), rehearing denied 45 F.3d 1303). Although many observers believed that the officers had been tried twice for the same offense, the convictions were upheld on appeal over double jeopardy objections. Under the

dual-sovereignty doctrine, the appellate court ruled, a defendant who violates the laws of two sovereigns, even if by a single act, has committed two distinct offenses, punishable by both authorities.

The dual-sovereignty doctrine is designed to vindicate the interest that each sovereign claims in promoting peace and dignity within its forum, and permits state and federal governments to prosecute someone for the same behavior after either has already done so. A defendant also may be prosecuted successively by two states for the same act or omission. In Heath v. Alabama, 474 U.S. 82, 106 S. Ct. 433, 88 L. Ed. 2d 387 (1985), the U.S. Supreme Court held that successive prosecutions by the states of Georgia and Alabama based upon the same offense did not violate the Double Jeopardy Clause. In Heath, the defendant had committed murder in the state of Alabama but had taken the body to Georgia, where Georgia officials eventually found it. Both states prosecuted Heath and convicted him of murder for the same action, and the U.S. Supreme Court allowed the convictions to stand.

Some limitations apply to the dual-sovereignty doctrine. Successive prosecutions by a state and one of its political subdivisions (such as a county, city, or village) are not permitted, because these entities are deemed to be one sovereign. Moreover, federal and state authorities may not achieve a second prosecution by manipulating the criminal justice system, sometimes called a "sham prosecution." Although this exception to the dual sovereignty doctrine has been cited in several cases, it is seldom invoked.

The U.S. DEPARTMENT OF JUSTICE has developed an internal restriction on pursuing a prosecution after state prosecution has failed. Federal prosecutors under this restriction may only pursue a second prosecution for compelling reasons, and the prosecutor must obtain prior approval from the assistant attorney general prior to bringing the prosecution. This restriction is called the "Petite policy," named after the U.S. Supreme Court's decision in Petite v. United States, 361 U.S. 529, 80 S. Ct. 45, 4 L. Ed. 2d 490 (1960), which involved the prosecution of an individual in two federal district courts for what amounted to the same offense. Although the Petite policy appears in the Department of Justice's manual, criminal defendants may not rely upon this restriction if a federal prosecutor fails to adhere to the department's guidelines.


Being tried twice for the same offense; prohibited by the 5th Amendmentto the U.S. Constitution.

'[T]he Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.' U.S. v. Halper, 490 U.S. 435, 440 (1989).

Separate punishments in multiple criminal prosecution are constitutionally permissible, however, if the punishments are not based upon the same offenses. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if 'each provision requires proof of an additional fact which the other does not.' Id. at 304.

More recently, in U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993), the Court clarified the use of the 'same elements test' set forth in Blockburger when it over-ruled the 'same conduct' test announced in Grady v. Corbin, 495 U.S. 508 (1990), and held that the Double Jeopardy Clause bars successive prosecutions only when the previously

concluded and subsequently charged offenses fail the 'same elements' test articulated in Blockburger. See also Gavieres v. U.S., 220 U.S. 338, 345 (1911) (early precedent establishing that in a subsequent prosecution '[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other').

In U.S. v. Felix, 112 S.Ct. 1377 (1992), the Court held that 'prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause.' Felix, at 1380. See also Saccoccia, 18 F.3d at 798 (citing Felix, at 1384) ('A substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes.')

The Double Jeopardy Clause protects against multiple punishments for the same offense. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306 (1984).

However, stretching the bounds of logic, the courts have decided that since the state and federal governments are separate sovereigns and therefore successive prosecutions based on the same underlying conduct do not violate the Double Jeopardy Clause if the prosecutions are brought by separate sovereigns. See, e.g., U.S. v. Koon, 34 F.3d 1416, 1438 (9th Cir.'94).

But, double jeopardy may exist if the federal prosecutors were mere 'tools' of the state or that the federal proceeding was a 'sham' carried out at the behest of the state. Koon, at 1438.

Close coordination between state and federal authorities, including 'the employment of agents of one sovereign to help the other sovereign in its prosecution,' does not implicate the Double Jeopardy Clause. U.S. v. Figueroa-Soto, 938 F.2d 1015, 1020 (9th Cir.'91), cert. denied, 502 U.S. 1098 (1992); accord U.S. v. Paiz, 905 F.2d 1014, 1024 (7th Cir.'90), cert. denied, 499 U.S. 924 (1991) (holding that the fact 'that an Indiana prosecutor was later designated a Special Deputy United States Attorney for purposes of a federal prosecution' was insufficient to establish a sham prosecution). Nor is a county's possible pecuniary interest in a federal proceeding sufficient to transform the federal government into a mere 'tool' of the county.

Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or

similar) charges following a legitimate acquittal or conviction. In common law countries, a defendant may

plea of autrefois acquit or autrefois convict (autrefois means "previously" in

French), meaning the defendant has been acquitted or convicted of the same offence. [1]

If this issue is raised, evidence will be placed before the court, which will normally rule as a preliminary matter whether the plea is substantiated, and if it so finds, the projected trial will be prevented from proceeding. In some countries, the guarantee against being "twice put in jeopardy" is a constitutional right; these include Canada, Mexico and the United States. In other countries, the protection is afforded by statute law. [3]


police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, health, and safetyof their inhabitants. [1] Some people would also add morals to this list. Under the 10th Amendment to the United States Constitution, the powers prohibited from or not delegated to the Federal Government are reserved to the states respectively, or to the people. This implies that the states do not possess all possible powers, since some of these are reserved to the people.

The exercise of police power can be in the form of making laws, compelling obedience to those laws through legal sanctions, physical means, or other forms of coercion and inducements. Controversies over the exercise of police power, particularly the use of physical means, arise when its exercise by the federal government conflicts with the rights of the states or when its exercise by federal or state authorities conflicts with individual rights and freedoms.

Police powers are, from the point of view of state courts, also restricted by state constitutions. The concept of police power is used by federal courts which do not have jurisdiction to interpret state constitutions: from the point of view of federal constitutional law, states have general police powers except where restricted by the federal Constitution.

Because the Congress has limited powers granted in the Constitution, the Federal government does not have a general police power, as the states do. The exceptions are laws regarding Federal property and the military; the Federal government was also granted broad police powers by the Interstate Commerce Act of 1887.

The authority conferred upon the states by the Tenth Amendment to the U.S. Constitution and which the states delegate to their political subdivisions to enact measures to preserve and protect the safety, health, Welfare, and morals of the community.

Police power describes the basic right of governments to make laws and regulations for the benefit of their communities. Under the system of government in the United States, only states have the right to make laws based on their police power. The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution.

The right of states to make laws governing safety, health, welfare, and morals is derived from the Tenth Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people." State legislatures exercise their police power by enacting statutes, and they also delegate much of their police power to counties, cities, towns, villages, and large boroughs within the state.

Police power does not specifically refer to the right of state and local government to create police forces, although the police power does include that right. Police power is also used as the basis for enacting a variety of substantive laws in such areas asZoning, land use, fire and Building Codes, gambling, discrimination, parking, crime, licensing of professionals, liquor, motor vehicles, bicycles, nuisances, schooling, and sanitation.

If a law enacted pursuant to the police power does not promote the health, safety, or welfare of the community, it is likely to be an unconstitutional deprivation of life, liberty, or property. The most common challenge to a statute enacted pursuant to the police power is that it constitutes a taking. A taking occurs when the government deprives a person of property or directly interferes with or substantially disturbs a person's use and enjoyment of his or her property.

The case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994) illustrates how a state or local jurisdiction can exceed its police power. Mahony involved a zoning ordinance enacted by the township of Hampton in Pennsylvania. The ordinance prohibited a private party from operating a gas well in a residential district but allowed the operation of such wells by the government. Jack D. Mahony, a landowner who operated a gas well, objected to the ordinance, arguing that the disparate treatment of public and private operation of gas wells was Arbitrary and not justified by any concerns related to the police power. Mahony noted that the State Department of Environmental Regulation (DER) already regulated all gas wells in the state and that there was no factual basis for distinguishing between public and private wells.

The Supreme Court of Pennsylvania agreed with Mahony that the regulation by the DER was sufficient to secure the safety of the community. The court opined that if the township wished to further ensure gas well safety, it could require the posting of a bond with the township before granting a license to operate the well. Such a measure would ensure that the gas well was being operated by a financially secure person who would have the resources to keep the well in good repair. The court held that the total ban on private operation of gas wells in residential districts was unreasonable and that it bore no real and substantial relation to the health, safety, and welfare of the community. Therefore, the ordinance was an invalid exercise of the police power


the protection and

and welfare.

the doctrine of eminent domain. Although police power is fundamental and essential (and cannot be surrendered or transferred) it is subject to constitution-imposed limitations such as due process and supremacy of the law of the land.

use under

and enforce laws for

State's constitution-granted power to govern,









The power inherent in the State to regulate liberty and property for the promotion of the general welfare. [1]

The state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. It consists of an imposition of restraint upon liberty or property in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. [2]

The power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. [3]


Lat. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts.

To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied

upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports.

An appeal court's panel is "bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions." United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989).Although the doctrine of stare decisis does not prevent

reexamining and, if need be, overruling prior decisions, "It is

fundamental jurisprudential policy that prior applicable precedent usually

must be followed even though the case, if considered anew, might be

decided differently by the current justices. This policy

assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.'" (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its

consistency or inconsistency with other related rules of law.


'is based on the

stare decisis (Anglo-Latin pronunciation: /ˈstɛəri dɨˈsaɪsɨs) is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." [2] In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. [2]

Stare Decisis

Principle of Stare Decisis The principle of stare decisis enjoins adherence by lower courts to doctrinal rules established by this Court in its final decisions. It is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.[49] Basically, it is a bar to any attempt to relitigate the same issues,[50]necessary for two simple reasons: economy and stability. In our jurisdiction, the principle is entrenched in Article 8 of the Civil Code.[51] This doctrine of adherence to precedents or stare decisis was applied by the English courts and was later adopted by the United States. Associate Justice (now Chief Justice) Reynato S. Puno’s discussion on the historical development of this legal principle in his dissenting opinion in Lambino v. Commission on Elections[52] is enlightening:

The latin phrase stare decisis et non quieta movere means “stand by the thing and do not disturb the calm.” The doctrine started with the English Courts. Blackstone observed that at the beginning of the 18th century, “it is an established rule to abide by former precedents where the same points come again in litigation.” As the rule evolved, early limits to its application were recognized: (1) it would not be followed if it were “plainly unreasonable”; (2) where courts of equal authority developed conflicting decisions; and, (3) the binding force of the decision was the “actual principle or principles necessary for the decision; not the words or reasoning used to reach the decision.” The doctrine migrated to theUnited States. It was recognized by the framers of the U.S. Constitution. According toHamilton, “strict rules and precedents” are necessary to prevent “arbitrary discretion in the courts.”Madisonagreed but stressed that “x x x once the precedent ventures into the realm of altering or repealing the law, it should be rejected.” Prof. Consovoy well noted that Hamilton and Madison “disagree about the countervailing policy considerations that would allow a judge to abandon a precedent.” He added that their ideas “reveal a deep internal conflict between the concreteness required by the rule of law and the flexibility demanded in error correction. It is this internal conflict that the Supreme Court has attempted to deal with for over two centuries.”

Indeed, two centuries of American case law will confirm Prof. Consovoy’s observation although stare decisis developed its own life in the United States. Two strains of stare decisis have been isolated by legal scholars. The first, known as vertical stare decisisdeals with the duty of lower courts to apply the decisions of the higher courts to cases involving the same facts. The second, known as horizontal stare decisis requires that high courts must follow its own precedents. Prof. Consovoy correctly observes that verticalstare decisis has been viewed as an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not a command. Indeed, stare decisis is not one of the precepts set in stone in our Constitution. It is also instructive to distinguish the two kinds of horizontal stare decisis constitutionalstare decisis and statutory stare decisis. Constitutional stare decisis involves judicial interpretations of the Constitution while statutory stare decisis involves interpretations of statutes. The distinction is important for courts

enjoy more flexibility in refusing to apply stare decisis in constitutional litigations. Justice Brandeis’ view on the binding effect of the doctrine in constitutional litigations

still holds sway today. In soothing prose, Brandeis stated: “Stare decisis is not


universal and inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or departed from, is a question entirely within the discretion of the court, which is again called upon to consider a question once decided.” In the same vein, the venerable Justice Frankfurter opined: “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” In contrast, the application of stare decisis on judicial interpretation of statutes is more inflexible. As Justice Stevens explains: “after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself.” This stance reflects both respect for Congress’ role and the need to preserve the courts’ limited resources. In general, courts follow the stare decisis rule for an ensemble of reasons, viz.: (1) it legitimizes judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule where (1) its application perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect stare decisis are stuck agreeing with them. In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and reversed its decisions in 192 cases. The most famous of these reversals is Brown v. Board of Education which junked Plessy v. Ferguson’s “separate but equal doctrine.” Plessy upheld as constitutional a state law requirement that races be segregated on public transportation. In Brown, the U.S. Supreme Court, unanimously

held that “separate

of stare decisis, the U.S. Supreme Court freed the colored Americans from the chains of inequality. In the Philippine setting, this Court has likewise refused to be straitjacketed

by the stare decisis rule in order to promote public welfare. In La Bugal-B’laan Tribal Association, Inc. v. Ramos, we reversed our original ruling that certain provisions of the Mining Law are unconstitutional. Similarly, in Secretary of Justice v. Lantion, we overturned our first ruling and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. An examination of decisions on stare decisis in major countries will show that courts are agreed on the factors that should be considered before overturning prior rulings. These are workability, reliance, intervening developments in the law and changes in fact. In

is inherently unequal.” Thus, by freeing itself from the shackles

addition, courts put in the balance the following determinants: closeness of the voting, age of the prior decision and its merits. The leading case in deciding whether a court should follow the stare decisis rule in constitutional litigations is Planned Parenthood v. Casey. It established a 4-pronged test. The court should (1) determine whether the rule has proved to be intolerable simply in defying practical workability; (2) consider whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) determine whether related principles of law have so far developed as to have the old rule no more than a remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be seen differently, as to have robbed the old rule of significant application or justification.[53] To be forthright, respondent’s argument that the doctrinal guidelines prescribed inSantos and Molina should not be applied retroactively for being contrary to the principle ofstare decisis is no longer new. The same argument was also raised but was struck down inPesca v. Pesca,[54] and again in Antonio v. Reyes.[55] In these cases, we explained that the interpretation or construction of a law by courts constitutes a part of the law as of the date the statute is enacted. It is only when a prior ruling of this Court is overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith, in accordance therewith under the familiar rule of “lex prospicit, non respicit.”