# Another question for law dopers re double jeopardy **URL:** \ **Category:** Factual Questions\ **Created:** [April 9, 2013, 2:17pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224 "2013-04-09T14:17:06Z")\ **Posts on this page:** 19\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2013, 2:17pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/1 "2013-04-09T14:17:06Z")
This involves a real case, but I’ve changed the details. A man is tried and charged with robbery. With the lesser includeds, the jury has a choice between: Robbery 1–Felony Robbery 2–Felony Assault–Misdemeanor NOT GUILTY. At trial, the jury hangs. 11 votes for assault. 1 for not guilty. At retrial, he is convicted of Robbery 1. My question: It seems to me to be a violation of double jeopardy. While the first jury didn’t agree, they did in fact agree that he was guilty of no more than misdemeanor assault at best. IMO, he was once placed in jeopardy of a felony conviction and all 12 jurors agreed that he was not guilty of a felony. I know of no case law to support my contention, but it just feels wrong. Am I on to something, or is this allowed? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2013, 2:20pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/2 "2013-04-09T14:20:21Z")
To add more detail, he was subsequently convicted of two more felonies and is serving a life recidivist term in prison. By that one single juror, who believed his innocence, standing firm on not guilty, he has served 16 years in prison. Had the juror not stood his ground and voted against his conscience for guilty to misdemeanor assault, the outcome would have been BETTER for the accused. That seems wrong to me. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 9, 2013, 2:21pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/3 "2013-04-09T14:21:48Z")
I am not a US lawyer, but I cannot see any problem if the case was a mistrial, whicH I recall from my long forgotten US constitution classes, does not bar a retrial. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2013, 2:29pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/4 "2013-04-09T14:29:08Z")
> [@AK84](#): > > I am not a US lawyer, but I cannot see any problem if the case was a mistrial, whicH I recall from my long forgotten US constitution classes, does not bar a retrial. I agree, but my question was more narrow than that. If I was that lone juror, should I vote guilty on misdemeanor assault even if I believe he didn’t do it on the theory that if I hold out, a retrial could get him convicted of a felony? That seems a perversion of justice. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 9, 2013, 2:32pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/5 "2013-04-09T14:32:41Z")
> [@jtgain](#): > > This involves a real case, but I’ve changed the details. A man is tried and charged with robbery. With the lesser includeds, the jury has a choice between: > > Robbery 1–Felony > Robbery 2–Felony > Assault–Misdemeanor > NOT GUILTY. > > At trial, the jury hangs. 11 votes for assault. 1 for not guilty. Did the jury acquit on Robbery 1 and Robbery 2, and hang on assault? ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [April 9, 2013, 2:33pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/6 "2013-04-09T14:33:39Z")
Or on retrial he could be found innocent. Juries are very unpredictable. Only a crazy person would try to stucture their own actions on that of a future, hypothetical jury. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 9, 2013, 2:35pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/7 "2013-04-09T14:35:44Z")
> [@Bricker](#): > > Did the jury acquit on Robbery 1 and Robbery 2, and hang on assault? I don’t know that they specifically acquitted him of the higher charges. They were faced with the list of charges and after several days told the judge that they were deadlocked. He asked how they were deadlocked and they said 11-1 for assault. After another day, the judge declared a mistrial. (And the jury again confirmed that they had 11 votes for guilty of assault and 1 vote for not guilty) ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [April 9, 2013, 2:39pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/8 "2013-04-09T14:39:03Z")
> [@jtgain](#): > > Had the juror not stood his ground and voted against his conscience for guilty to misdemeanor assault, the outcome would have been BETTER for the accused. That seems wrong to me. Neither retrials or double jeopardy are meant to get the accused a better deal, just a fair one. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 9, 2013, 2:57pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/9 "2013-04-09T14:57:27Z")
From the OP - they did not find him “not guilty” of the Robbery charges. They had a choice of 4 verdicts, they chose “none of the above”. As a result, how they voted is irrelevant. The trial started fresh, as if the first one had not happened. I find it interesting that for one jury, nobody was convinced he had committed robbery, and for the next, 12 were. the DA must have been confident (or picked a more nasty jury) if he kept the robbery options on the table; or caoched his witnesses better; or did he drop the assault-misdemeanour option? I assume too the victim saw what the pitfalls were in the first cross-examination and was ready with a better story for the second trial. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 9, 2013, 3:06pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/10 "2013-04-09T15:06:52Z")
> [@jtgain](#): > > I don’t know that they specifically acquitted him of the higher charges. They were faced with the list of charges and after several days told the judge that they were deadlocked. He asked how they were deadlocked and they said 11-1 for assault. After another day, the judge declared a mistrial. (And the jury again confirmed that they had 11 votes for guilty of assault and 1 vote for not guilty) If they had specifically acquitted him of the higher charges, that would have been a bar to a subsequent retrial. If they did not, and the judge declared a mistrial as to all three counts, then the DJ Clause does not bar a retrial on any of those counts. There is no legal significance to the fact that the jury stood 11-1 one way or the other. As a practical matter, this information might sway the prosecutor into not retrying the case or offering a sweetheart deal, but it has no bearing on the application of jeopardy. And since the votes from the jury apparently weren’t tabulated on the other counts, you have no way of knowing where they stood on the Robbery charges. Perhaps they were 11-1 for conviction on Robbery 1? ---
**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:** [April 9, 2013, 3:10pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/11 "2013-04-09T15:10:56Z")
This thread is ringing a bell for me. Didn’t we have a discussion on this sort of scenario a year or so ago? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 9, 2013, 4:56pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/12 "2013-04-09T16:56:07Z")
> [@Bricker](#): > > If they had specifically acquitted him of the higher charges, that would have been a bar to a subsequent retrial. If they did not, and the judge declared a mistrial as to all three counts, then the DJ Clause does not bar a retrial on any of those counts. I think the OP is saying the jury had a choice - convict the perp of one of the offenses (i.e. different charges for the same offense, varying levels of severity); sort of like “you can convict this guy of manslaughter or second degree murder, depending on whether you feel the evidence meets the criteria.” (Is this a normal option in trials in the USA?) Therefore, the majority of the first jury felt the guy had only committed assault. One thought he was not guilty of anything. In the second trial, the jury it seems thought he committed a crime and it fit the most serious definition. My gut instinct is the first trial exposed weaknesses in the prosecution case that they managed to clear up in the second trial. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 9, 2013, 5:02pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/13 "2013-04-09T17:02:46Z")
> [@md2000](#): > > I think the OP is saying the jury had a choice - convict the perp of one of the offenses (i.e. different charges for the same offense, varying levels of severity); sort of like “you can convict this guy of manslaughter or second degree murder, depending on whether you feel the evidence meets the criteria.” > > (Is this a normal option in trials in the USA?) > > Therefore, the majority of the first jury felt the guy had only committed assault. One thought he was not guilty of anything. > > In the second trial, the jury it seems thought he committed a crime and it fit the most serious definition. > > My gut instinct is the first trial exposed weaknesses in the prosecution case that they managed to clear up in the second trial. It’s very normal for a jury to be given a series of charges that encompass both the “top count” and certain lesser-included offenses. But in this case, the jury apparently did not unanimously acquit the accused of the robbery counts. For this reason, the prosecution was free to re-try those counts at a subsequent trial. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 9, 2013, 5:04pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/14 "2013-04-09T17:04:42Z")
> [@Northern\_Piper](#): > > This thread is ringing a bell for me. Didn’t we have a discussion on this sort of scenario a year or so ago? [Good memory!](http://boards.straightdope.com/sdmb/showthread.php?t=578537) Same OP, too. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 9, 2013, 5:55pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/15 "2013-04-09T17:55:14Z")
From that thread, what I am reading, is that if a single offense results in a range of charges - “Because of this action means he is charged with Robbery 1, but we also believe you could instead convict of the lesser Robbery two or the even lesser Assault”. From the other thread, I gather then that the jury would return and give a verdict on each of the charges. Can they give a verdict on one charge and deadlock on another? I’m sure I’ve heard of this often. Then the question is - why is there no verdict recorded for the Robbery charges? Or are they only supposed to give one vedict, on only one of the three possible crimes? Or did the judge just not poll them on the other charges since they had stated they were deadlocked on the one charge? What result is a jury supposed to return? After all, if they convicted him on Robbery 1, the robbery 2 and assault charges are irrelevant, I assume. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [April 9, 2013, 6:47pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/16 "2013-04-09T18:47:05Z")
> [@md2000](#): > > Then the question is - why is there no verdict recorded for the Robbery charges? Or are they only supposed to give one vedict, on only one of the three possible crimes? Or did the judge just not poll them on the other charges since they had stated they were deadlocked on the one charge? > > What result is a jury supposed to return? After all, if they convicted him on Robbery 1, the robbery 2 and assault charges are irrelevant, I assume. All of this depends on what state you’re in (and what year it is, laws change). And once you know that, you may need to dig deeper. The law can be tricky. ---
**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:** [April 11, 2013, 4:43am UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/17 "2013-04-11T04:43:35Z")
> [@Bricker](#): > > [QUOTE=Northern Piper] > > This thread is ringing a bell for me. Didn’t we have a discussion on this sort of scenario a year or so ago? [Good memory!](http://boards.straightdope.com/sdmb/showthread.php?t=578537) Same OP, too. [/QUOTE] Actually, that’s not the one I was thinking of; it’s this: [Supreme Court Allows Arkansas Second Shot At Murder Trial In Double Jeopardy Dispute](http://boards.straightdope.com/sdmb/showthread.php?t=652948&highlight=jury+verdict) From the HuffPost article quoteded there: > [@](#): > > Arkansas is not barred by the Constitution’s double jeopardy clause from retrying a man for murder even though the first jury had announced it was unanimously against the charge, the Supreme Court ruled on Thursday morning. > > Alex Blueford was charged with capital murder and its three “lesser included” offenses – first-degree murder, manslaughter and negligent homicide – for the 2007 death of his girlfriend’s one-year-old son. Under Arkansas law, the jury could either convict Blueford of one of those offenses or acquit him of them all. The jury, per the judge’s instructions, considered each offense from most to least serious. > > After several hours of deliberations, the jurors reported they were “hopelessly” deadlocked. At the judge’s request, they clarified in open court that they were unanimously against the capital murder and first-degree murder charges, remained split over the manslaughter charge, and had yet to consider the negligent homicide charge. The judge sent them back for further deliberations. When the jurors still could not reach a verdict, the judge declared a mistrial. > > Arkansas then attempted to retry Blueford on the capital murder and first-degree murder charges. He cried foul, pointing to the jury’s unanimous votes against those charges in the first trial and arguing that the state was trying to get a constitutionally prohibited second bite at the apple. The Arkansas Supreme Court rejected his appeal. ---
**Author:** ![Isilder](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@Isilder](https://boards.straightdope.com/u/Isilder)\ **Post date:** [April 11, 2013, 4:11pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/18 "2013-04-11T16:11:38Z")
> [@Darth\_Panda](#): > > Neither retrials or double jeopardy are meant to get the accused a better deal, just a fair one. No, not a fair one, just a unanimous one. Its well known the courts must APPEAR to be fair and just, when assessed by that blindfolded lady. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [April 11, 2013, 4:20pm UTC](https://boards.straightdope.com/t/another-question-for-law-dopers-re-double-jeopardy/655224/19 "2013-04-11T16:20:51Z")
> [@Isilder](#): > > No, not a fair one, just a unanimous one. > > Its well known the courts must APPEAR to be fair and just, when assessed by that blindfolded lady. Double jeopardy doesn’t have much do to with unanimous verdicts. The people the law must appear just to are those devising it and those voting on it. I know a few professors that work on model penal codes. They’re smart, boring people with a strong sense of fairness.