# 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:** 8\ **Page:** 2
**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, 7:43pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/21 "2012-08-03T19:43:01Z")
There is a case in California called “People v. Bivens” in which it was apparently held that there is an exception under California law to the double jeopardy provision of the Constitution. Where prosecution for a crime was impossible due to a necessary element not yet having occurred or be possible to discover through due diligence at the time of the first prosecution of a lesser crime, a scond prosecution is not barred. That may not be the precise holding but it does seem to say that since the victim was not yet dead, a prosecution for murder was not possible initially, but since that situation changed as a result of defendant’s initial acts, he can be prosecuted for murder now that that fact is in evidence. ---
**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, 11:46pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/22 "2012-08-03T23:46:38Z")
> [@denquixote](#): > > between the parties in the original case yes, but what about federal intervention? Generally murder isn’t a federal crime, unless there is a specific type of murder address by federal law (civil rights, for example). The garden variety man murders his wife doesn’t apply. ---
**Author:** ![BrotherCadfael](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@BrotherCadfael](https://boards.straightdope.com/u/BrotherCadfael)\ **Post date:** [August 3, 2012, 11:49pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/23 "2012-08-03T23:49:14Z")
> [@Superhal](#): > > 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. > [@matt\_mcl](#): > > I… really don’t think there’s case law on that issue. :o Surely you’ve heard the ancient legal maxim, “A niche in time saves Stein”? ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [August 4, 2012, 1:16am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/24 "2012-08-04T01:16:48Z")
> [@Derleth](#): > > [snip] > Maybe the prosecution was idiotic enough to go for murder one alone when the victim was still alive enough for government work. [snip] 😃 ---
**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 4, 2012, 10:42pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/25 "2012-08-04T22:42:35Z")
Follow up question, couldn’t the prosecutor have asked for a mistrial after the cop/witness attacked the defendant in front of the jury? Or would there have been no point once the confession was excluded and the murder weapon was missing? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [August 5, 2012, 12:05am UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/26 "2012-08-05T00:05:58Z")
IIRC, isn’t there some common law principle that says the death has to occur within one year of the murder act for the murder charge to apply? (Ignoring the double jeopardy or entitled-to-pull-the-plug rule). If the argument was the initial shooting was the crime, then presumably double jeopardy applies. I would find it analogous to being found not guilty of auto theft, so you are charged with theft over $500 afterwards (The chrome wheels and mink seat covers…?). DJ prohibits that. If the crime was pulling the plug - then the question is whether he is entitled to. If it’s a legal act then motivation is irrelevant, unless the law about plugs says otherwise. You can pull the plug on dear old dad and still inherit his money; the state or the siblings can’t argue that your motivation was money therefore your inheritance is invalid, or any such thing. Why you pulled the plug is irrelevant. Presumably the law has doctor-assessment safeguards built in. ---
**Author:** ![Kevilsticks](https://avatars.discourse-cdn.com/v4/letter/k/7cd45c/32.png) [@Kevilsticks](https://boards.straightdope.com/u/Kevilsticks)\ **Post date:** [December 14, 2013, 11:30pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/27 "2013-12-14T23:30:26Z")
Just watched Fracture (a bit late I know) and I have a big issue with the finale. Mid-film the ballistics evidence is tampered with. This issue isn’t mentioned at the end but would have resulted in a mis-match with the murder weapon and consequently the prosecution would fail. Willy doesn’t know who the aide in the evidence room is and would therefore have difficulty proving the swap…which would also destroy his career anyway as he didn’t report it when it happened. Right? ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [December 14, 2013, 11:38pm UTC](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119/28 "2013-12-14T23:38:47Z")
> [@Kevilsticks](#): > > Just watched Fracture (a bit late I know) and I have a big issue with the finale. Mid-film the ballistics evidence is tampered with. This issue isn’t mentioned at the end but would have resulted in a mis-match with the murder weapon and consequently the prosecution would fail. Willy doesn’t know who the aide in the evidence room is and would therefore have difficulty proving the swap…which would also destroy his career anyway as he didn’t report it when it happened. Right? [Moderator Note] This thread is on the legal aspects of the movie, not the details of the plot. A discussion of the plot is more appropriate for Cafe Society. However, since this is an old thread I’m going to close it instead of move it and suggest you open a new thread in CS. Colibri General Questions Moderator [Previous page](https://boards.straightdope.com/t/another-legal-question-spawned-by-a-movie-double-jeopardy/630119.md?page=1)