# Another legal question spawned by a movie \[double jeopardy\] **URL:** \ **Category:** Factual Questions\ **Created:** [August 1, 2012, 11:53pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119 "2012-08-01T23:53:40Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [August 1, 2012, 11:53pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/1 "2012-08-01T23:53:40Z")
**Fracture** with Anthony Hopkins and Ryan Gosling. Evil rich guy shoots unfaithful wife, she’s in a brain dead coma, he beats the legal system and walks on attempted murder, then he pulls the plug on her. Gosling is the brash young prosecuter who finds new evidence and in the end says double jeapordy doesn’t apply since she’s dead now and I can file new charges. As a movie it’s predictable and full of plot holes, but the ending intrigues me. So, he legally withdrew support from a brain dead spouse some months after in can now be shown he inflicted her grievous injuries. Can he be charged with homicide? Takes place in L.A. if that matters. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [August 2, 2012, 12:11am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/2 "2012-08-02T00:11:49Z")
How about this analysis: Either he killed her when he shot her or he did not. This hinges on what ‘death’ is defined as: Brain death, or a condition where they can’t even keep you alive on a heart-lung machine. Obviously, if she died when her brain did, the beating-heart corpse in the hospital won’t help him beat the murder rap. (Kinda raises the question of why they were keeping her going to begin with. Maybe her organs were to be harvested.) If the jurisdiction defines her brain-dead self as alive, then he obviously didn’t murder her. He merely attempted to murder her and committed a grievous case of assault and battery. That’s still a good, long time in the slammer. Maybe they could even try him for murder after the potted plant gets pneumonia and dies the rest of the way. But he walked on that charge. Maybe the prosecution was idiotic enough to go for murder one alone when the victim was still alive enough for government work. Maybe he’s really O.J. Simpson. In that case, she was still just as alive after his acquittal, so how could he pull the plug without _that_ being homicide? I doubt merely ‘withdrawing support’ would be enough to get anyone else to pull the plug if pulling said plug would be defined as homicide; that would seem like kind of a bizarro-world version of murder for hire. In any event, jeopardy wouldn’t attach because pulling the plug is not the same offense as shooting her at a specific time and at a specific place. ---
**Author:** ![Fubaya](https://avatars.discourse-cdn.com/v4/letter/f/c2a13f/32.png) [@Fubaya](https://boards.straightdope.com/u/Fubaya)\ **Post date:** [August 2, 2012, 12:29am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/3 "2012-08-02T00:29:17Z")
From what I understand, once he was acquitted of attempted murder, he couldn’t be tried for murder. After all, the court already found that he hadn’t attempted to murder her. If they did convict him of attempted murder and she later died, they could try him for murder because the full extent of his actions weren’t known until she died. But that’s not what happened in the movie. ---
**Author:** ![Fubaya](https://avatars.discourse-cdn.com/v4/letter/f/c2a13f/32.png) [@Fubaya](https://boards.straightdope.com/u/Fubaya)\ **Post date:** [August 2, 2012, 1:28am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/4 "2012-08-02T01:28:26Z")
Ok, that sent me on a google fest. My answer, and I’m no attorney, is still no, the movie was wrong. [Here](http://www.volokh.com/posts/1177883377.shtml) a UCLA law professor sums it up: > [@](#): > > In the Court’s words, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” > > … > > The prosecution’s theory in the second case was that Hopkins tried to kill his wife, and then the wife died some time later. The trial is for a different offense – murder, not attempted murder. There is thus no pure double jeopardy / res judicata / claim preclusion. But to convict Hopkins would require the prosecution to prove the very factual assertion rejected at the first trial – to show beyond a reasonable doubt that he tried to kill his wife. The government is collaterally estopped from proving this, so there is collateral estoppel / issue preclusion. Hopkins is thus entitled to an acquittal even at the second trial. Collateral estoppel means that you can’t relitigate an issue, even in another unrelated case. Once he was found not guilty of attempted murder, that is a fact that the court has decided and it stands as gospel truth. If they tried him for murder, the prosecution would not be allowed to argue that he killed her because it has already been found a fact that he didn’t try to kill her. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 2, 2012, 1:29am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/5 "2012-08-02T01:29:06Z")
> [@Fubaya](#): > > From what I understand, once he was acquitted of attempted murder, he couldn’t be tried for murder. After all, the court already found that he hadn’t attempted to murder her. > > If they did convict him of attempted murder and she later died, they could try him for murder because the full extent of his actions weren’t known until she died. But that’s not what happened in the movie. Correct. Once you are acquitted of a crime, you are forever free from the crime, all lesser included offenses, and the accusations of fact that led to those charges. Now, if the prosecutor wanted to propound a theory that he pulled the plug out of malice or to make sure that his previous actions would never come to light…well..that might work.. ---
**Author:** ![Typo\_Knig](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@Typo\_Knig](https://boards.straightdope.com/u/Typo_Knig)\ **Post date:** [August 2, 2012, 1:43am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/6 "2012-08-02T01:43:10Z")
That can’t mean that I can shoot at someone in 2005, get tried and acquitted in 2007, and shoot at them again in 2012 without legal consequence. The 2012 and 2005 shootings are different events. Hopkins’ character shooting his wife into a coma one year is a separate event from him pulling the plug on her months or years later. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [August 2, 2012, 2:05am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/7 "2012-08-02T02:05:56Z")
> [@Typo\_Knig](#): > > Hopkins’ character shooting his wife into a coma one year is a separate event from him pulling the plug on her months or years later. Put pulling the plug, when he is the legal guardian, isn’t an illegal act. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2012, 2:30am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/8 "2012-08-02T02:30:57Z")
> [@Fubaya](#): > > Ok, that sent me on a google fest. My answer, and I’m no attorney, is still no, the movie was wrong. > > [Here](http://www.volokh.com/posts/1177883377.shtml) a UCLA law professor sums it up: > > Collateral estoppel means that you can’t relitigate an issue, even in another unrelated case. Once he was found not guilty of attempted murder, that is a fact that the court has decided and it stands as gospel truth. If they tried him for murder, the prosecution would not be allowed to argue that he killed her because it has already been found a fact that he didn’t try to kill her. No need to look any farther than the SDMB: > [@Double jeopardy](https://boards.straightdope.com/t/double-jeopardy/394810/56): > > The movie _Double Jeopardy_ having been discussed above, I am resurrecting this thread because of a new release: _Fracture_, starring Ryan Gosling and Anthony Hopkins. Spoilers for the movie follow below, so highlight at your own risk. > > [spoiler]In _Fracture_, Hopkins’ character, Ted Crawford, is acquitted of the attempted murder of his wife; he shot her but she survives in a coma. He then uses his standing as next-of-kin to remove her from life support, and she dies. He reasons he’s safe from re-prosecution because of the double jeopardy clause. > > However, new evidence comes to light - specifically, the bullet that was in her body and could not have been removed without killing her. The prosecutor, Willy Beachum (Ryan Gosling), decides to charge Crawford with murder - a different crime than “attempted murder” - which theoretically dodges the double jeopardy problem. Bingo, unrepentant killer gets what’s coming to him. > > Only… not. > > In real life, Crawford would be safe from reprosecution because of _Ashe v. Swenson_’s collateral estoppel rule, discussed above. The original trial ended in the film with a directed verdict, which operates just as an acquittal would have. That means the state is collaterally estopped from re-litigating any element of the murder that they had tried, and failed, to prove in the attempted murder trial. > [/spoiler] > > Detailed discussion of this without involving massive spoiler box use may not be possible. ---
**Author:** ![Typo\_Knig](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@Typo\_Knig](https://boards.straightdope.com/u/Typo_Knig)\ **Post date:** [August 2, 2012, 4:36am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/9 "2012-08-02T04:36:54Z")
> [@Telemark](#): > > Put pulling the plug, when he is the legal guardian, isn’t an illegal act. So it isn’t, but I assume there’s a paperwork process for that. Anyway, Hollywood != reality, as if we needed any more reminders. ---
**Author:** ![allotrope](https://avatars.discourse-cdn.com/v4/letter/a/edb3f5/32.png) [@allotrope](https://boards.straightdope.com/u/allotrope)\ **Post date:** [August 2, 2012, 4:43am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/10 "2012-08-02T04:43:42Z")
[From the Volokh link](http://www.volokh.com/archives/archive_2007_04_29-2007_05_05.shtml?ModPagespeed=off#) > [@](#): > > The point of the criminal collateral estoppel principle is that the government’s failure to prove certain facts beyond a reasonable doubt in one case means it can’t prove the same facts beyond a reasonable doubt in a later case against the same defendant. (If the government were trying to prove Hopkins guilty by a preponderance of the evidence in some civil action, collateral estoppel wouldn’t bar that, because a fact may not be proven beyond a reasonable doubt but still be provable by a preponderance of the evidence; but that doesn’t apply here. Also, if a different government – say, the federal government rather than the state government – tried to prosecute him, then it **wouldn’t be barred** either by the collateral estoppel principle or the pure double jeopardy principle, but that’s not applicable here, likely because Hopkins’ murder of his wife wasn’t a federal crime.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 2, 2012, 11:50pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/11 "2012-08-02T23:50:45Z")
> [@allotrope](#): > > [From the Volokh link](http://www.volokh.com/archives/archive_2007_04_29-2007_05_05.shtml?ModPagespeed=off#) Yes. Not sure why you feel it’s relevant, since there were not two sovereigns in the movie, but that’s absolutely right. The double jeopardy rule does not bind two different sovereigns, so an act that could be prosecuted by two different states can be without offending the Double Jeopardy Rule. (A man who stood in Nevada and shot a bullet into California, killing someone, could theoretically be prosecuted for murder by both California and Nevada). And the federal government is also a separate and independent sovereign. The collateral estoppel principle requires mutuality of parties, so the same result occurs. California is collaterally estopped from proving intent, but another sovereign would not be. In the movie’s case, though, there’s no other state or federal jurisdiction in play. ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [August 2, 2012, 11:56pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/12 "2012-08-02T23:56:39Z")
Thanks all; Bricker, my apologies for not knowing you’d have already addressed the issue. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 3, 2012, 12:18am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/13 "2012-08-03T00:18:56Z")
> [@Telemark](#): > > Put pulling the plug, when he is the legal guardian, isn’t an illegal act. This raises an interesting question. Pulling the plug isn’t an illegal act because society doesn’t demand heroic efforts to save lives. But what if the intent behind pulling the plug was to make sure that the victim/patient never woke up and couldn’t testify about the previous attack? (Double jeopardy would apply even if she did testify, but lets assume the perp wanted to protect his image in the community) Pulling the plug then is (and this is my question) a separate malicious act which may be prosecuted as murder, no? And Rules of Evidence 404(b) may be used to bring in all of the prior evidence in the previous trial to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Am I on to something? ---
**Author:** ![SpoilerVirgin](https://avatars.discourse-cdn.com/v4/letter/s/4491bb/32.png) [@SpoilerVirgin](https://boards.straightdope.com/u/SpoilerVirgin)\ **Post date:** [August 3, 2012, 12:33am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/14 "2012-08-03T00:33:58Z")
Law & Order dealt with the identical situation (possibly ripped from a real life case?) by having the killer go on to murder his second wife, so that they could convict him of that one without worrying about double jeopardy issues. ---
**Author:** ![Superhal](https://avatars.discourse-cdn.com/v4/letter/s/b4bc9f/32.png) [@Superhal](https://boards.straightdope.com/u/Superhal)\ **Post date:** [August 3, 2012, 2:12am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/15 "2012-08-03T02:12:27Z")
> [@Telemark](#): > > Put pulling the plug, when he is the legal guardian, isn’t an illegal act. Is this the right answer? Example: Woman murders her son, goes to jail. In jail, she gets access to a time machine, goes back in time, and aborts her son while he was still in her womb. She cannot go to jail because of the abortion, even though she had motive and means because what she did wasn’t a criminal act, and she cannot be prosecuted for the first act because it never happened. The police follow her, bring her back to the present, but now there’s no murder, only an abortion. ---
**Author:** ![matt\_mcl](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)\ **Post date:** [August 3, 2012, 2:20am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/16 "2012-08-03T02:20:58Z")
> [@Superhal](#): > > Is this the right answer? > > Example: Woman murders her son, goes to jail. In jail, she gets access to a time machine, goes back in time, and aborts her son while he was still in her womb. She cannot go to jail because of the abortion, even though she had motive and means because what she did wasn’t a criminal act, and she cannot be prosecuted for the first act because it never happened. The police follow her, bring her back to the present, but now there’s no murder, only an abortion. I… really don’t think there’s case law on that issue. :o ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 3, 2012, 7:27am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/17 "2012-08-03T07:27:49Z")
> [@jtgain](#): > > This raises an interesting question. Pulling the plug isn’t an illegal act because society doesn’t demand heroic efforts to save lives. But what if the intent behind pulling the plug was to make sure that the victim/patient never woke up and couldn’t testify about the previous attack? (Double jeopardy would apply even if she did testify, but lets assume the perp wanted to protect his image in the community) > > Pulling the plug then is (and this is my question) a separate malicious act which may be prosecuted as murder, no? And Rules of Evidence 404(b) may be used to bring in all of the prior evidence in the previous trial to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” > > Am I on to something? You would have problems of proof if the defense could produce medical testimony that the victim wasn’t going to ever wake up. But apart from that, yes, signing the “pull the plug” order is probably a separate crime. I’m struggling a bit more with the prior bad acts claim. I’d want to nail down, specifically, the elements that are precluded by the acquittal – basically an Ashe v Swenson inquiry. I don’t think a fact that the government is precluded from claiming against you is a possible 404(b) claim. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [August 3, 2012, 4:11pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/18 "2012-08-03T16:11:19Z")
> [@Bricker](#): > > The double jeopardy rule does not bind two different sovereigns, so an act that could be prosecuted by two different states can be without offending the Double Jeopardy Rule. (A man who stood in Nevada and shot a bullet into California, killing someone, could theoretically be prosecuted for murder by both California and Nevada). As a comparitive example, see Heath v. Alabama USSC. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [August 3, 2012, 4:17pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/19 "2012-08-03T16:17:16Z")
> [@outlierrn](#): > > So, he legally withdrew support from a brain dead spouse some months after in can now be shown he inflicted her grievous injuries. Can he be charged with homicide? Takes place in L.A. if that matters. Homicide is the UNLAWFUL taking of a life. If he has medical power of attorney, he has the right to unhook her, especially if before hand she signed off on a “Do not resucitate”, (DNR) order when they were on terms. That then would NOT be an UNlawful taking of a life. ---
**Author:** ![denquixote](https://avatars.discourse-cdn.com/v4/letter/d/b9bd4f/32.png) [@denquixote](https://boards.straightdope.com/u/denquixote)\ **Post date:** [August 3, 2012, 6:25pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/20 "2012-08-03T18:25:05Z")
> [@jtgain](#): > > Correct. Once you are acquitted of a crime, you are forever free from the crime, all lesser included offenses, and the accusations of fact that led to those charges. > > Now, if the prosecutor wanted to propound a theory that he pulled the plug out of malice or to make sure that his previous actions would never come to light…well..that might work.. between the parties in the original case yes, but what about federal intervention? [Next page](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119.md?page=2)