# Amend the 5th Amendment? (Double Jeopardy)

**URL:** <https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012>\
**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:** 2\
**Page:** 3

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**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\
**Post date:** [November 26, 2002, 3:23pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/41 "2002-11-26T15:23:39Z")

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> [@](#):
>
> rather, the rationale derives from the simple fact that under our system of Federalism the states and the national government are different sovereigns–and the action of either is generally not binding on the other. Nothing “atrocious” about that; it is the essence of our Nation’s political formation and continued existence.

I don’t quite buy this. To keep the hypo simple, say a guy kills a postal worker. He is charged under federal law and sentenced to life in prison. I do not believe that the state could then re-try him in an attempt to get the death penalty imposed, despite the different sovereigns involved.

If I’m right on this, why is there a bar to retrying someone who is found guilty, but no bar on retrying someone who is found not guilty?

Sua

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**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [November 26, 2002, 7:20pm UTC](https://boards.straightdope.com/t/amend-the-5th-amendment-double-jeopardy/138012/42 "2002-11-26T19:20:47Z")

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> [@](#):
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> \*Originally posted by Rmat \*  
> No prob, **Bricker**. Apology accepted. (Actually, I’m a little disappoitned you weren’t looking for a fight; I felt pretty confident that I’d win this one.)
> 
> The rule, as I’ve always heard it expressed (anywhere), is “first witness,” and thus the answer would be no. But your hypothetical assumes that the first piece of evidence adduced is something other than testimony–an exceedingly unlikely scenario that the familiar expression of the rule may well have failed to take stock of. (“Self-authenticating” documents, after all, are not terribly common, which explains why trial judges say, “You may call your first witness,” rather than “You may offer your first document.”)

I certainly agree that it’s almost impossible to imagine a case in which the prosecution could meet its burden solely with self-authenticating documents – maybe a parole revocation proceeding of some kind, but for those, jeopardy is not such a big concern in any event.

> [@](#):
>
> I’m no DUI expert, but I can assure you that in California, if the evidence shows merely that you are drunk behind the wheel of a car (engine running or not) you cannot be convincted of DUI; indeed, you typically wouldn’t even be charged with it (Drunk in public is another story.). There might be a little leeway in that rule in the event of a collision, but I’m doubtful even about that.

Maybe we can have our fight after all! 🙂

I am no expert on California law, but in DC, Maryland, and Virginia, the evidence merely has to show that you are in control of the car, and that the car is on a public highway. This includes parking lots, so long as they are open to the general public, and includes situations in which the engine is running but the car isn’t moving; this is sufficient for DWI/DUI charges – assuming the evidence also shows the requisite impairment, of course.

- Rick

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