# Amanda Knox and Double Jeopardy **URL:** \ **Category:** Factual Questions\ **Created:** [March 26, 2013, 10:55am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993 "2013-03-26T10:55:50Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![bob\_2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bob_2/32/3341_2.png) [@bob\_2](https://boards.straightdope.com/u/bob_2)\ **Post date:** [February 2, 2014, 12:13am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/81 "2014-02-02T00:13:23Z")
It looks like we will be well into 2015 before we know hwether the Italians will even be asking for extradition. I know this is a GQ thread about the double jeopardy situation but: 1. Knox has suffered, and will suffer a great deal for many years whatever the result. 2. Please do not ignore the fact that a young girl died in a pretty horrific murder. ---
**Author:** ![runningdude](https://avatars.discourse-cdn.com/v4/letter/r/e9c0ed/32.png) [@runningdude](https://boards.straightdope.com/u/runningdude)\ **Post date:** [February 3, 2014, 9:39pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/82 "2014-02-03T21:39:12Z")
> [@ElvisL1ves](#): > > That’s there the diplomacy part gets a little tricky - the US government would be publicly proclaiming that one of its closest allies, one of its fellow industrial democracies at that, has the judicial system of a banana republic. True or not, the embarrassment to Italy might not be worth it. Look instead for some private understanding to be reached and never publicized, involving Knox never returning. The United States has its hands pretty dirty, itself, when it comes to people wrong convicted or disproportionately sentenced. Saying Italy made the same mistake in this instance is not going to be a diplomatic crisis. ETA: Zombie thread, oops. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 4, 2014, 3:09pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/83 "2014-02-04T15:09:59Z")
> [@Northern\_Piper](#): > > That’s because 18 USC Sec. 3184 deals with the judicial process. If the court concludes that the legal requirements have been met, the issue then shifts to the Secretary of State under [18 USC Sec. 3186](http://www.law.cornell.edu/uscode/text/18/3186): > > “may” is normally used to indicate a discretion, correct? > > See also: [Extradition To and From the United States: Overview of the Law and Recent Treaties, by the Congressional Research Service](http://www.fas.org/sgp/crs/misc/98-958.pdf), at p. 25: > > [My underlining.] > > This passages cites _United States v. Kin-Hong_, 110 F.3d 103, 109 (1st Circuit, 1997): “It is then within the Secretary of State’s sole discretion to determine whether the realtor should actually be extradited. _See_ 18 U.S.C. § 3186.” Looks like I missed this comment last year – and I agree; I was wrong to suggest that the Secretary’s exercise of discretion was merely practical and without statutory support. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 4, 2014, 3:47pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/84 "2014-02-04T15:47:04Z")
> [@Do\_Not\_Taunt](#): > > [my emphasis] > > **Bricker** , I know I’m replying to a comment you made almost a year ago, but it caught my attention (and I don’t recall reading this thread a year ago.) This seems to be the crux of your argument: the Italian trial and appeals mirrors what can happen in the US without invoking double jeopardy. Convicted at trial, the conviction was vacated by appeals, and then reinstated by higher appeals, and that’s all kosher with no double jeopardy. But that isn’t what happened here. In this case, the higher appeals court didn’t reinstate a trial court’s conviction; it vacated a trial that ended in acquittal and _ordered a new trial._ A new trial at which the prosecution entered a wholly new theory of the crime. I can’t see how that isn’t double jeopardy by US standards. The problem with this analogy is that in the United States, typically there is only one trial court. The intermediate and final appellate venues don’t re-try the case. They examine the record and rule on issues of law anew, without any particular deference to the trial court, but they accept the trial court’s findings of fact as binding, as long as there is any competent evidence in the record to sustain those findings. They do not re-hear witnesses or re-weigh evidence to reach their own conclusions. So in Italy, we had the following sequence: [ul] [li]Convicted at trial by findings of fact and conclusions of law[/li][li]Appeals court “re-tries” the case and acquits by findings of fact and conclusions of law[/li][li]Conviction re-instated by higher appellate court by findings of fact and conclusions of law[/li][/ul] If that happened in the U.S., it would be fine for double jeopardy purposes, because the steps would be different: [ul] [li]Convicted at trial by findings of fact and conclusions of law[/li][li]Appeals court examines the record of the case and acquits by conclusions of law[/li][li]Higher appellate court examines the record and reinstates trial conviction by conclusions of law[/li][/ul] In the U.S., the higher appellate court finds that the intermediate appellate court incorrectly ruled on a matter of law. In Italy, the higher court is reviewing both facts and law. Even in the U.S., there is no double jeopardy limitation on the prosecution changing their theory of the crime if a retrial occurs. Other doctrines might prevent them from doing so, however. ---
**Author:** ![Charlie\_Wayne](https://avatars.discourse-cdn.com/v4/letter/c/4bbf92/32.png) [@Charlie\_Wayne](https://boards.straightdope.com/u/Charlie_Wayne)\ **Post date:** [February 4, 2014, 4:15pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/85 "2014-02-04T16:15:46Z")
Amanda just seems like such a nice sweet girl (OK. I could be wrong. I admit it.). I just don’t understand how she could be the target of so much hate and anger (not necessarily in this thread or on this board but so much hatred on other boards). I would like to just put my arms around her and give her a nice big kiss. \*\*\* SMOOCH AMANDA SMOOCH \*\*\* \*\*\* SMOOCH SMOOCH SMOOCH \*\*\* I just love Amanda. Willful blindness? Maybe. Stupidity? Maybe. Am I a stupid man? Maybe so. ---
**Author:** ![Charlie\_Wayne](https://avatars.discourse-cdn.com/v4/letter/c/4bbf92/32.png) [@Charlie\_Wayne](https://boards.straightdope.com/u/Charlie_Wayne)\ **Post date:** [February 4, 2014, 4:22pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/86 "2014-02-04T16:22:31Z")
Is this a good time for me to stop posting to this thread? Almost certainly! ---
**Author:** ![Do\_Not\_Taunt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/do_not_taunt/32/2968_2.png) [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)\ **Post date:** [February 4, 2014, 8:14pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/87 "2014-02-04T20:14:29Z")
> [@Bricker](#): > > So in Italy, we had the following sequence: > > [ul] > [li]Convicted at trial by findings of fact and conclusions of law[/li][li]Appeals court “re-tries” the case and acquits by findings of fact and conclusions of law[/li]**[li]Conviction re-instated by higher appellate court by findings of fact and conclusions of law**[/li][/ul] (emphasis added). Thank you very much for your reply, **Bricker**. Ok, onto the substance: is this a fair assessment of what happened? If they re-instated the conviction, why is there a retrial? > [@](#): > > If that happened in the U.S., it would be fine for double jeopardy purposes, because the steps would be different: > > [ul] > [li]Convicted at trial by findings of fact and conclusions of law[/li][li]Appeals court examines the record of the case and acquits by conclusions of law[/li][li]Higher appellate court examines the record and reinstates trial conviction by conclusions of law[/li][/ul] Why would there be double jeopardy? It seems like in that case there wouldn’t even be a second trial - the defendant would just be convicted, and presumably in jail. > [@](#): > > In the U.S., the higher appellate court finds that the intermediate appellate court incorrectly ruled on a matter of law. In Italy, the higher court is reviewing both facts and law. I get the differences. I am asking: - If it comes to an extradition hearing, would the question of whether or not Knox was subjected to double jeopardy be relevant? - And if so, given that the systems don’t line up perfectly, don’t the events from Italy line up on the verboten side of the US double jeopardy line? ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 4, 2014, 8:40pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/88 "2014-02-04T20:40:51Z")
Since it is pretty well established that we have something similar in the US to the Amanda Knox case, let me ask the lawyers this. Given similar circumstances here in the US, would the prosecution be allowed to present a completely different scenario than their first case (I assume so)? If so, would the defense be allowed to point out the prosecution’s changing of the story from the first trial (does it make a difference if there is no new evidence?) to impeach the prosecution’s case? ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [February 4, 2014, 10:50pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/89 "2014-02-04T22:50:41Z")
Any person who is physically present in the USA is protected by US Constitutional rights. If she has a US Constitutional right to be protected from being twice put in jeopardy for the same crime, the US is bound to harbor her from any power that would deny her that right, and it would be defined the same as if everything had happened in the USA. Her lawyer has a very good argument against extradition, but that is no guarantee an American court will see it that way. ---
**Author:** ![AHarris](https://avatars.discourse-cdn.com/v4/letter/a/bcef8e/32.png) [@AHarris](https://boards.straightdope.com/u/AHarris)\ **Post date:** [February 4, 2014, 11:16pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/90 "2014-02-04T23:16:52Z")
> [@jtur88](#): > > Any person who is physically present in the USA is protected by US Constitutional rights. If she has a US Constitutional right to be protected from being twice put in jeopardy for the same crime, the US is bound to harbor her from any power that would deny her that right, and it would be defined the same as if everything had happened in the USA. Her lawyer has a very good argument against extradition, but that is no guarantee an American court will see it that way. How so? It’s been established that double jeopardy doesn’t apply in this case. ---
**Author:** ![Do\_Not\_Taunt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/do_not_taunt/32/2968_2.png) [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)\ **Post date:** [February 4, 2014, 11:29pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/91 "2014-02-04T23:29:31Z")
> [@AHarris](#): > > How so? It’s been established that double jeopardy doesn’t apply in this case. I would say that very question is being actively discussed, both in this thread as well as in the wider world. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 5, 2014, 2:06am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/92 "2014-02-05T02:06:32Z")
> [@Do\_Not\_Taunt](#): > > - And if so, given that the systems don’t line up perfectly, don’t the events from Italy line up on the verboten side of the US double jeopardy line? The difficulty with that argument is that it has the potential to undermine extradition treaties in general. No country will have exactly identical criminal systems; each country will have some rights that are not in the other country’s system. Even with two countries which have very similar systems, such as Canada and the US, there will be differences in the scope of protection. For instance, in some cases, the right to counsel is stronger in Canada than it is in the US; in other cases, the right to counsel is stronger in the US than in Canada. Does that mean that Canada and the US should not extradite to each other? Another example is the presumption of innocence. When Dominique Strauss-Kahn was arrested in the US a few years ago, the French were bothered by the “perp walk”. They felt that allowing a perp walk violated the accused’s right to the presumption of innocence. Should that difference on a key right mean that the French should not extradite to the US? If the requesting country’s system has to line up identically with the other country’s system, or else the other country declines extradition, it would be extremely difficult for extradition to occur. That’s why extradition requires an bilateral agreement between the two countries. Each country, as an executive act, decides whether the other country’s legal system provides sufficient protections, overall, to warrant allowing the surrender of an individual to that country. They don’t require exactly the same protections for the accused; that’s pretty much impossible. Instead, they look at the overall system. That’s also why extradition treaties normally leave the final decision on extradition to the executive, as discussed earlier in this thread. It provides an additional protection for the person whose extradition is requested; even if the legal requirements for extradition are met, the individual can still make submissions to the executive why, in the particular case, the justice system in the requesting country can’t be trusted to provide justice. ---
**Author:** ![Do\_Not\_Taunt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/do_not_taunt/32/2968_2.png) [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)\ **Post date:** [February 5, 2014, 3:55am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/93 "2014-02-05T03:55:37Z")
> [@Northern\_Piper](#): > > The difficulty with that argument is that it has the potential to undermine extradition treaties in general. No country will have exactly identical criminal systems; each country will have some rights that are not in the other country’s system. I don’t think I ever suggested that the standard be that the systems line up exactly. Rather, given that they don’t line up, where are we wrt double jeopardy? It doesn’t seem to be to be out-of-hand to suggest that Italy’s treatment here is so far off the mark from what would be allowable in the US that we would refuse extradition on the double jeopardy grounds alone (similar to how EU countries won’t extradite to the US in capital cases until the death penalty is off the table.) In fact, I think that if we really are committed to preventing double jeopardy cases, we really have to protect Knox from this extradition request. **Bricker** and others seem to disagree. And his argument, if I understand correctly, is not that it’s close but probably not and there’s lots of nuance, etc, but that it flat out “is not a winner.” I want to understand why. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [February 5, 2014, 4:49am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/94 "2014-02-05T04:49:04Z")
At the risk of ‘an appeal to authority’ argument, when I resurrected this thread with post #63 above, it was because several legal (and at least one constitutional) heavyweights thought it was a foregone conclusion that she’d be extradited if Italy asked for it, notwithstanding some comments to the contrary earlier in the thread. Is it not a safe bet that Dershowitz is right (i.e. that she _will_ be extradited if Italy requests it)? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 5, 2014, 5:02am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/95 "2014-02-05T05:02:18Z")
> [@Do\_Not\_Taunt](#): > > I don’t think I ever suggested that the standard be that the systems line up exactly. Rather, given that they don’t line up, where are we wrt double jeopardy? > > It doesn’t seem to be to be out-of-hand to suggest that Italy’s treatment here is so far off the mark from what would be allowable in the US that we would refuse extradition on the double jeopardy grounds alone (similar to how EU countries won’t extradite to the US in capital cases until the death penalty is off the table.) In fact, I think that if we really are committed to preventing double jeopardy cases, we really have to protect Knox from this extradition request. **Bricker** and others seem to disagree. And his argument, if I understand correctly, is not that it’s close but probably not and there’s lots of nuance, etc, but that it flat out “is not a winner.” I want to understand why. Simply: because the initial forum resulted in a conviction. Double jeopardy protections don’t usually get triggered when the first trial is a conviction. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 5, 2014, 5:03am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/96 "2014-02-05T05:03:45Z")
> [@KarlGauss](#): > > At the risk of ‘an appeal to authority’ argument, when I resurrected this thread with post #63 above, it was because several legal (and at least one constitutional) heavyweights thought it was a foregone conclusion that she’d be extradited if Italy asked for it, notwithstanding some comments to the contrary earlier in the thread. Is it not a safe bet that Dershowitz is right (i.e. that she _will_ be extradited if Italy requests it)? To be clear, I don’t know how safe a bet it is she’ll be extradited. But if she is not, it won’t be because the Italian process offends double jeopardy. ---
**Author:** ![Do\_Not\_Taunt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/do_not_taunt/32/2968_2.png) [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)\ **Post date:** [February 5, 2014, 6:55am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/97 "2014-02-05T06:55:59Z")
> [@Bricker](#): > > Simply: because the initial forum resulted in a conviction. Double jeopardy protections don’t usually get triggered when the first trial is a conviction. With all due respect, and you’re the lawyer here, not me, but this answer is too pat and ignores the objections I’ve raised. To summarize: the clearest way to map the outcome from the Italian system onto ours is that the first trial did not end in a conviction, but rather in an acquittal. The appeals court, acting as a finder of fact, acquitted. The higher court ruled that that was an error, _and ordered a retrial._ That’d double jeopardy. Is there any relevant case law on how situations like this have been handled in the past wrt extradition? ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [February 5, 2014, 9:40am UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/98 "2014-02-05T09:40:39Z")
Could the higher court have said that the acquittal was in error and reverse the decision? That would put her right back to Convicted without a new trial, and without double jeopardy concerns. At which point the court could find fault with the first trial and order a new one. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 5, 2014, 1:30pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/99 "2014-02-05T13:30:36Z")
> [@Do\_Not\_Taunt](#): > > With all due respect, and you’re the lawyer here, not me, but this answer is too pat and ignores the objections I’ve raised. To summarize: the clearest way to map the outcome from the Italian system onto ours is that the first trial did not end in a conviction, but rather in an acquittal. The appeals court, acting as a finder of fact, acquitted. The higher court ruled that that was an error, _and ordered a retrial._ That’d double jeopardy. Is there any relevant case law on how situations like this have been handled in the past wrt extradition? Why do you characterize the first level court’s verdict as irrelevant, and the second level court’s verdict as controlling? And your conclusion that because a higher court ruled that that was an error, _and ordered a retrial,_ this would be double jeopardy, is by no means certain. In our system, imagine a jury that votes to convict, but the trial judge sets aside their verdict and enters an acquittal. The prosecution can appeal that ruling, and the appellate court could order a retrial without offending the double jeopardy clause. So it’s perfectly possible to go from a judgement of acquittal to a retrial in the United States. I’ll search a bit for extradition case law today, but ultimately the extradition decision us one the State Department makes as a matter of discretion, so I doubt there will be definitive “you can’t extradite” case law out there. ---
**Author:** ![Do\_Not\_Taunt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/do_not_taunt/32/2968_2.png) [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)\ **Post date:** [February 5, 2014, 3:28pm UTC](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993/100 "2014-02-05T15:28:21Z")
> [@Bricker](#): > > Why do you characterize the first level court’s verdict as irrelevant, and the second level court’s verdict as controlling? Because the second level court is the higher court. Their ruling trumps the lower court’s, especially in a system where they act as finder of fact. > [@](#): > > In our system, imagine a jury that votes to convict, but the trial judge sets aside their verdict and enters an acquittal. The prosecution can appeal that ruling, and the appellate court could order a retrial without offending the double jeopardy clause. So it’s perfectly possible to go from a judgement of acquittal to a retrial in the United States. Really? Help me understand this. Why would a trial judge do this in the first place? Assuming he’s making a competent statement that the state failed to prove their case, why does the state get to try the accused again? > [@](#): > > I’ll search a bit for extradition case law today, but ultimately the extradition decision us one the State Department makes as a matter of discretion, so I doubt there will be definitive “you can’t extradite” case law out there. Thanks for looking. My understanding - and it may have been mentioned in this thread - is that there are two components: a legal question of whether the tests for extradition eligibility are met is decided by a judge, and then a political question of if we want to is decided by the state department. I’m happy constraining our conversation to the former. [Previous page](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993.md?page=4) [Next page](https://boards.straightdope.com/t/amanda-knox-and-double-jeopardy/653993.md?page=6)