# Amend the 5th Amendment? (Double Jeopardy) **URL:** \ **Category:** Great Debates\ **Created:** [November 21, 2002, 8:22pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012 "2002-11-21T20:22:29Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Eve](https://avatars.discourse-cdn.com/v4/letter/e/9e8a1a/32.png) [@Eve](https://boards.straightdope.com/u/Eve)\ **Post date:** [November 21, 2002, 8:22pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/1 "2002-11-21T20:22:29Z")
The 5th Amendment to the Constitution: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; **nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb** ; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” I was watching a documentary last night about this guy who was found innocent of his wife’s torture-murder; and thereafter, evidence was found proving him guilty. He even admitted it, but was only able to be tried for perjury and—with time already served—only got five years. This can’t be all that unsual a siuation—what would the pros and cons of fiddling with the 5th Amendment be? Here is a good [link](http://caselaw.lp.findlaw.com/data/constitution/amendment05/), by the way. ---
**Author:** ![Eve](https://avatars.discourse-cdn.com/v4/letter/e/9e8a1a/32.png) [@Eve](https://boards.straightdope.com/u/Eve)\ **Post date:** [November 21, 2002, 8:26pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/2 "2002-11-21T20:26:45Z")
Goddamit it—can I “amened” my OP title and that link? I Googled “Fifth-Amendment” and “double-jeopardy” and found some good links, _honest_. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 21, 2002, 8:44pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/3 "2002-11-21T20:44:42Z")
It’s the same old story, **Eve:** rules that are good in normal situations will occasionally lead to bad results in extraordinary situations. There are a few things to consider: 1. Both the concepts of equal protection of the laws and due process of law prevent us from making specific rules for those extraordinary circumstances. We must operate under a rule of general applicability; 2. While we don’t know here the specific facts of the wife-killer’s case, the fault may not lie with the 5th Amendment in that case, but instead with the prosecutor. There is no statute of limitations on murder. The prosecutor could have waited until all the evidence was in before starting the prosecution, and chose not to. The 5th Amendment forces prosecutors to exercise patience - which ain’t that bad of a thing. 3. We must consider the fundamental purpose of the 5th Amendment. The governmental abuse sought to be prevented is the substitution of the judgment of a jury of one’s peers with the judgment of the government (particularly, the prosecutor). Without the 5th Amendment, the prosecutor, after a verdict of Not Guilty, may say, “I disagree with the jury, so I’m gonna try the bastard again.” And again, until a jury comes up with a verdict the prosecutor likes. Any amended version of the 5th Amendment must continue to protect against that possibility. 4. Nor would an exception carved out where new evidence is found necessarily be a good idea. The possibility of abuse is significant. The prosecution and police may, as a matter of course, choose not to pursue particular avenues of investigation, so that, if they lose the first trial, they have new places to look for the evidence necessary to hold a second trial. Sua ---
**Author:** ![Mighty\_Maximino](https://avatars.discourse-cdn.com/v4/letter/m/e95f7d/32.png) [@Mighty\_Maximino](https://boards.straightdope.com/u/Mighty_Maximino)\ **Post date:** [November 21, 2002, 8:55pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/4 "2002-11-21T20:55:20Z")
Agree with **Sua**. Another problem is that the government has basically limitless resources compared to an average citizen. Defending against a criminal charge is very expensive, and repeated prosecutions could quickly leave a defendant destitute and helpless. I could easily see a prosecutor using this possibility as a weapon to get a plea bargain! ---
**Author:** ![Eve](https://avatars.discourse-cdn.com/v4/letter/e/9e8a1a/32.png) [@Eve](https://boards.straightdope.com/u/Eve)\ **Post date:** [November 21, 2002, 9:10pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/5 "2002-11-21T21:10:26Z")
OK, I cave. I knew there must be some good reasons; I just didn’t know what they were. . . . There’s no way to just fine-tune it a bit? ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 21, 2002, 9:15pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/6 "2002-11-21T21:15:46Z")
Actually there’s another issue that comes up a lot lately in this context. That being when the same actions involve multiple crimes, sometimes answerable to multiple jurisdictions (generally federal and state). This has the effect of double jeopardy, but apart from some occasional rumblings, appears to be accepted. An example of this is the LAPD officers who beat up Rodney King. Having beat the rap on whatever assault charges they faced at first, they got put away for civil rights violations for having commited the very same acts. Same goes - I think - for Crown Heights rioter Limerick Nelson. An iffy proposition. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 21, 2002, 9:17pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/7 "2002-11-21T21:17:07Z")
> [@](#): > > \*Originally posted by Eve \* > \*\*Goddamit it—can I “amened” my OP title and that link? I Googled “Fifth-Amendment” and “double-jeopardy” and found some good links, _honest_. \*\* It’s okay. The people who complained about the last redundant double-jeopardy thread aren’t allowed to do so again. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 21, 2002, 9:17pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/8 "2002-11-21T21:17:49Z")
> [@](#): > > \*Originally posted by Eve \* > \*\*OK, I cave. I knew there must be some good reasons; I just didn’t know what they were. > > . . . There’s no way to just fine-tune it a bit? \*\* What could be tweaked is the point at which double jeopardy attaches. Currently, a trial need not always go to a verdict for double jeopardy to attach. Sua ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 21, 2002, 9:36pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/9 "2002-11-21T21:36:50Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\*What could be tweaked is the point at which double jeopardy attaches. Currently, a trial need not always go to a verdict for double jeopardy to attach. > > Sua \*\* Never, in fact. Jeopardy attaches at a jury trial when the jury is sworn, and at a bench trial when the judge begins hearing evidence. Certain circumstances may cause the accused to _waive_ jeopardy, or may force that waiver upon him, but that doesn’t mean jeopardy hasn’t attached. And just because jeopardy attached to the first charge doesn’t always mean that there’s not another charge that could be brought. Under certain circumstances, _Blockburger_ has enough holes to drive a Ford Econoline van through. - Rick ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 22, 2002, 1:27am UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/10 "2002-11-22T01:27:10Z")
It is true that on some occassions Double Jeopardy lets people literally get away with murder. But we have to consider what would happen if the prohibition on Double Jeopardy was lifted. The possibility of government corruption would be enormous. Innocent people could be tried over and over. The government has almost unlimited resources, but an accussed person usually does not. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 22, 2002, 5:27pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/11 "2002-11-22T17:27:46Z")
Let us not forget that _two forums_ do not invoke jeopardy as against each other, too. So that a trial in State court on a given charge does not preclude one in Federal court on a violation of Federal statute based on the same alleged offense, and vice versa. **Bricker** , you want to provide a link to _Blockberger_? I would have thought that it was a combination fast-food and video rental place, myself! 😉 ---
**Author:** ![pantom](https://avatars.discourse-cdn.com/v4/letter/p/34f0e0/32.png) [@pantom](https://boards.straightdope.com/u/pantom)\ **Post date:** [November 22, 2002, 6:04pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/12 "2002-11-22T18:04:42Z")
Is that Fed/State thingie the reason the Rodney King cops were tried twice? Ditto for OJ? Just wondering. I have long thought that these “civil rights” violations trials that take place after a criminal guilty verdict can’t be reached were a way of getting around the prohibition against Double Jeopardy. Now that we have cases on both sides of the racial divide, as it were, I was kinda hoping someone would take up the cause of getting rid of this. I think it’s a loophole, and a dishonorable one at that. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 22, 2002, 6:28pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/13 "2002-11-22T18:28:28Z")
O.J. wasn’t tried twice. The second trial was a civil one to determinne whether O.J. bore any responsibility for the wrongful death of Nicole and (damn, what’s the other guy’s name?). Double jeopardy applies only in the criminal context. I agree with you that re-trying the Rodney King cops was an abomination (though I wish they had been convicted the first go-around). In that situation, they didn’t even have the excuse of new evidence - the feds just didn’t like the result of the state proceedings. Sua ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 22, 2002, 6:53pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/14 "2002-11-22T18:53:47Z")
Oh, and **Eve** ’s typo in the thread title has led me to an amusing train of thought: Pastor: “Thou shalt hold no person to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shalt thou subject any person for the same offense to be twice put in jeopardy of life or limb; nor shalt thou compel him in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shalt thou take private property for public use, without just compensation. Here endeth the lesson.” Congregation: Amen!! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 22, 2002, 7:25pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/15 "2002-11-22T19:25:35Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*Let us not forget that _two forums_ do not invoke jeopardy as against each other, too. So that a trial in State court on a given charge does not preclude one in Federal court on a violation of Federal statute based on the same alleged offense, and vice versa. > > **Bricker** , you want to provide a link to _Blockberger_? I would have thought that it was a combination fast-food and video rental place, myself! 😉 \*\* I mispelled the party name - it’s [_BLOCKBURGER v. U.S._, 284 U.S. 299 (1932)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/284/299.html). It’s the seminal case for the double jeopardy test used to decide whether two offenses are the same for the purposes of double jeopardy. - Rick ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 22, 2002, 10:13pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/16 "2002-11-22T22:13:36Z")
**Rick,** forgot to say thanks earlier for catching and correcting my goof on when jeopardy attaches. Sua ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [November 22, 2002, 10:23pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/17 "2002-11-22T22:23:14Z")
Interesting story from today’s newspaper: a juror at a murder trial sends a note to the judge saying he/she has panic disorder and is completely unable to complete the trial, with a note from a doctor. The judge is faced with a number of choices, none good…continue with 11 jurors? Declare a mistrial and start over? The judge chose the latter, which the Texas Court of Criminal Appeals said was precisely the wrong one. He’ll probably do time on an unrelated attempted murder charge, but it looks like the guy got away with murder. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 23, 2002, 2:56am UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/18 "2002-11-23T02:56:41Z")
Why didn’t the judge just seat one of the alternate jurors? ---
**Author:** ![RexDart](https://avatars.discourse-cdn.com/v4/letter/r/b77776/32.png) [@RexDart](https://boards.straightdope.com/u/RexDart)\ **Post date:** [November 23, 2002, 3:23am UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/19 "2002-11-23T03:23:28Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\* > Jeopardy attaches at a jury trial when the jury is sworn, and at a bench trial when the judge begins hearing evidence. > \*\* Nitpick…jeopardy attaches at a bench trial when the first witness is sworn in. If you had a document that didn’t need authentication by a witness, as far as I know introducing it wouldn’t attach jeopardy. > [@](#): > > \*\* > And just because jeopardy attached to the first charge doesn’t always mean that there’s not another charge that could be brought. Under certain circumstances, _Blockburger_ has enough holes to drive a Ford Econoline van through. > > - Rick \*\* Well, since _Blockburger_ is no longer the law of the land, it doesn’t really matter. It was replaced with _Grady v. Corbin_, 495 US 508 (1990). Then it was replaced with _US v. Dixon_, 509 US 688 (1993). _Dixon_ reinstated the “same elements” test that had prevailed since _Blockburger_, but strictly speaking _Blockburger_ is no longer the controlling case. Different sovereigns can of course both prosecute, unless the second sovereign to prosecute is the federal government (the _Petite_ policy.) That policy must have failed in the case of the LAPD officers of the King incident. As for multiple offenses, the three tests used in varying courts for double jeopardy: 1.) “Same elements”: it is not a double jeopardy infringement if each offense charged requires proof of a fact which the other does not. Example: Not allowed under this test is to convict for assault&battery and murder. All the elements of assault and battery are in murder, murder just has an extra (the death of the victim.) Thus there are no elements of a&b that aren’t in murder, so no-go. This is the _Blockburger_ and _Dixon_ rule, the SCOTUS holding, so the law of the land in FEDERAL courts. 2.) “Same conduct”: the same conduct cannot be used twice as an essential element of the crime yielding conviction. This was the _Grady_ rule, in effect in federal courts from 1990-1993. Since it is _more_ protective of criminals’ rights, the states may interpret their own versions of the 5th Amendment to use this test rather than the “same elements” to extend further protection to the accused. About a dozen states use this test. 3.) “Same transaction”: rooted ideologically in Brennan’s dissent in _Ashe v. Swenson_, 397 US 436 (1970). All offenses that “grow out of a single criminal act, occurance, episode, or transaction” are considered the same offense. Common example is that if B kidnaps, rapes, then murders C, and B is prosecuted and convicted only on the kidnapping charge, B cannot later be prosecuted for the rape or murder of C. Only half a dozen states use this test. So there’s what you’re up against. I think that, rather than amend the double jeopardy clause, it would be wiser to simply legislate one of those options that you find most pleasing. That would make it the law of the land in federal court. You can then work in your state legislature to alter which test is utilized by your state courts. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [November 23, 2002, 3:54am UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/20 "2002-11-23T03:54:31Z")
Edited typo in title of thread and fixed link in O.P. [Next page](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012.md?page=2)