# Can someone explain how the double jeopardy laws work? **URL:** \ **Category:** Factual Questions\ **Created:** [January 18, 2012, 4:01am UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874 "2012-01-18T04:01:47Z")\ **Posts on this page:** 11\ **Page:** 2
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 19, 2012, 5:41pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/21 "2012-01-19T17:41:13Z")
> [@lawbuff](#): > > The DJ Clause of the 5th Amendment was not made applicable to the states until 1969 so that state’s DJ provision applied in 1955, and evidentially it did not forbid such. > [@Bricker](#): > > Absolutely incorrect. See Burton v. State, 79 So. 2d 242, (Miss. 1955): If you are refering to this part of my post: > [@](#): > > so that state’s DJ provision applied in 1955, and evidentially it did not forbid such As I stated above, I did not know a federal court retried the person, so my statement was based on that fact. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 19, 2012, 5:44pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/22 "2012-01-19T17:44:16Z")
> [@friedo](#): > > They were acquitted on state charges. They were subsequently tried by the federal government for violating the civil rights of Rodney King while acting in their capacity as law enforcement officers, which is a federal crime. United States Code Title 18 sec. 242, is the criminal civil rights violation statute under color of law. 42 USC 1983 is the Civil + remedy. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 19, 2012, 5:55pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/23 "2012-01-19T17:55:24Z")
> [@md2000](#): > > I’m not sure in what circumstances the “speedy trial” rule applies if at all in the states. Here in Canada, one constitutional right is to be charged within a reasonable time. The state cannot collect evidence for a crime and hold it over your head for the next two decades, when we need to teach you a lesson we’ll charge you for that old crime you committed way back in your college days. Of course, if new evidence comes to light (we found the body 20 years later) then that may mean they have enough evidence now to lay charges, but they did not before. States generally are more in specific tune with a speedy trial provision thatn the federal constitution will alllow. For example my state, Ohio, we have by statute certain time frames. A Minor Misdemeanor must be prosecuted within 30 days. A Misdemeanor of the 4th degree within 60 days, etc. Most crimes have statutes of limitations for prosecution, 2 being a total exception, Murder and Espionage/Treason. I do know from past research that the state of Kentucky has NO SOL on any Felony anymore, applicable after that passage. The SOL is seperate from the commencement of a prosecution though. In my state the SOL does not begin until the Corpus Delecti is discovered. IOW, the crime itself may have say a 6 year SOL, but that only concerns if the crime was known at the time. > [@](#): > > They don’t get to keep trying over and over again until they find the right jury. When a Jury is hung a retrial can take place, but the Due Process Clause of the 14th AM, to state trials, will limit the # of retrials, yes. As you say a Prosecutor simply can’t keep retrying a defendant. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 19, 2012, 6:02pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/24 "2012-01-19T18:02:45Z")
Bricker, I see they were NOT retried in federal court, so disregard my post that thought that from your other post, my error. ---
**Author:** ![MikeS](https://avatars.discourse-cdn.com/v4/letter/m/919ad9/32.png) [@MikeS](https://boards.straightdope.com/u/MikeS)\ **Post date:** [January 19, 2012, 6:10pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/25 "2012-01-19T18:10:49Z")
Another “interesting” example of double jeopardy is the case of [Paul Warner Powell](http://articles.cnn.com/2010-01-25/justice/scotus.killers.letter_1_supreme-court-death-row-execution?_s=PM:CRIME). Powell was tried in 1999 for a home invasion in which he raped a pair of sisters and murdered the older. Virginia law allowed for the death penalty only in cases of “aggravated murder”, i.e., the murder was committed in association with certain other crimes. Since there wasn’t enough evidence that he had raped the older sister, he was sentenced to life in prison instead of to death. Believing that he was protected by double jeopardy, Powell wrote a letter to prosecutors, taunting them that he had got away with raping the older sister as well. That changed the crime, and he was retried and sentenced to death. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 19, 2012, 6:17pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/26 "2012-01-19T18:17:13Z")
> [@MikeS](#): > > Another “interesting” example of double jeopardy is the case of [Paul Warner Powell](http://articles.cnn.com/2010-01-25/justice/scotus.killers.letter_1_supreme-court-death-row-execution?_s=PM:CRIME). Powell was tried in 1999 for a home invasion in which he raped a pair of sisters and murdered the older. Virginia law allowed for the death penalty only in cases of “aggravated murder”, i.e., the murder was committed in association with certain other crimes. Since there wasn’t enough evidence that he had raped the older sister, he was sentenced to life in prison instead of to death. Believing that he was protected by double jeopardy, Powell wrote a letter to prosecutors, taunting them that he had got away with raping the older sister as well. That changed the crime, and he was retried and sentenced to death. I would think that the priciple of law here is what is known as the Blockburger test, from the US SC case of the same name. You can try a person for a crime of X and Y when one has an “element” not present in the other. A case some years ago in a midwest state was that a person was tried for 8 murders when only 4 were killed. Each crime had a specific element the other did not, say Murder, then murder with a deadly weapon, etc. I think there could only be 4 convictions though, the state wanted to make sure one of the 8 stuck. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 19, 2012, 6:17pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/27 "2012-01-19T18:17:24Z")
To summarize: 1. An acquittal is a bar to further prosecution for the same or substantively similar crime resulting from the same set of putative criminal conduc ny the same jurisdiction. It does not preclude prosecutions in different jurisdictions nor similar crimes happening in different places at different times. I.e., Henry’s having been acquitted of taking an illegal bet on Tuesday under a gambling statute does not preclude his being charged with taking a different bet on Saturday. 2. Dismissal of a case may be _with or without prejudice_. Essentially prejudice amounts to a finding that jeopardy attached, and precludes furtyher prosecution. > [@](#): > > Depending on the country, a criminal proceeding which ends prematurely due to error, mistake, or misconduct, may end as being dismissed with prejudice or without prejudice. If the case ends without prejudice, the accused in the case (the defendant) may be retried. If the case ends with prejudice, the effect on the defendant (for the purpose of punishment) is the equivalent to a finding of not guilty and they cannot be retried. > > In the United States, if there is a mistrial, or the case is overturned on appeal, generally this is without prejudice and (in the case of decision overturned on appeal) either all of the case is retried, or, if not all of the case is overturned, the parts that were overturned (like a sentencing hearing) are retried. If the case is dismissed because of prosecutorial misconduct, it will typically be dismissed with prejudice, which means that the defendant cannot be retried. > > In general, the rule for whether or not a case is dismissed with or without prejudice depends on what condition the case is in and whether “jeopardy” has attached to the case. If jeopardy is attached to a case, a dismissal or a resolution is “with prejudice” and the case can never be litigated again. In the case of a trial by jury, jeopardy attaches when the jury is empaneled and a dismissal (for prosecutorial misconduct or harmful error) at that point must be with prejudice. In the case of a bench trial (trial by the judge only), jeopardy attaches when the first witness in the case is sworn. > > If a criminal case is brought to trial and the defendant is acquitted, jeopardy is attached to the case and it can never be retried. If the defendant was convicted and his conviction is overturned, jeopardy is not attached because the defendant is considered to simply be in the same state they were before the case was tried. > > If a person is brought to trial where they are charged with a particular crime and is convicted of a lesser offense, the conviction for a lesser offense is an acquittal of any higher-level offense (for example, a conviction for second-degree murder is an acquittal of first-degree murder). If the conviction is later overturned, the maximum the defendant can be retried for is the crime to which they were convicted; any higher charge is acquitted and thus is with prejudice. (From Wikipedia article on prejudice) 1. A conviction is a bar to a retrial for the same offense while the conviction remains in force. Convictions can however be vacated. Regarding speedy trials, the courts have declined to nail down exactly what time period constitutes too long for the constitutional requirement of a speedy trial. A couple of points are however worth making. First, any time elapsed as a result of defense motions does not count. That is, you may not claim loss of a speedy trial by intentionally delaying your trial. Second, the courts have in general looked askance at delays beyond six to nine months attributable to the prosecution. Note that those numbers are pragmatic _à posteriori_ figures suggestive of what courts have held, and do not represent a quantification of the legal principle of what comprises a speedy trial. A court could well hold that a prosecution in a complex case taking up to a year to ensure all necessary scientific tests have been performed is not violating defendant’s speedy trial rights; conversely, a prosecution stalling for a couple of months in hopes that non-extant evidence will turn up may well be pushing the court’s patience under the speedy trial doctrine. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2012, 7:00pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/28 "2012-01-19T19:00:59Z")
> [@lawbuff](#): > > Bricker, I see they were NOT retried in federal court, so disregard my post that thought that from your other post, my error. Correct – they were not retried, period, in any judicial forum. I think your confusion arose from this part of the OP: > [@](#): > > So my question is why were these two re-tried? But the OP goes on to say: > [@](#): > > As I understand it, the double jeopardy laws prohibits the state from re-prosecuting someone based on the same evidence that was presented during the first trial. If these two guys confessed, seems like that would be a pretty big piece of new evidence. > > Why not try to prosecute them again? One if them lived until the mid-90’s, seems that even if the failure to re-try these guys can be chalked up to Mississippi in the 1950’s, at some point someone would open a case again based on their confession. ---
**Author:** ![tishakastar](https://avatars.discourse-cdn.com/v4/letter/t/d9b06d/32.png) [@tishakastar](https://boards.straightdope.com/u/tishakastar)\ **Post date:** [July 3, 2012, 1:06am UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/29 "2012-07-03T01:06:45Z")
If a case that includes 1st degree attempted murder, 2nd and 3rd degree aggravated assault and 2nd degree burglary is dismissed WITH prejudice, can the prosecution turn around and file for a greater charge of 2 count 1st degree murder and use evidence/facts from the above case that was dismissed WITH prejudice to convict someone? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 3, 2012, 2:11am UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/30 "2012-07-03T02:11:23Z")
> [@tishakastar](#): > > If a case that includes 1st degree attempted murder, 2nd and 3rd degree aggravated assault and 2nd degree burglary is dismissed WITH prejudice, can the prosecution turn around and file for a greater charge of 2 count 1st degree murder and use evidence/facts from the above case that was dismissed WITH prejudice to convict someone? Maybe. But probably not. By that I mean that we’d need a bit more detail. When a case is dismissed, the reasons behind the dismissal are important. Does the fact pattern now charged in the first degree murder prosecution rely upon the same acts that were alleged in the prior case? Your question simply says, “…use evidence/facts…” from the prior case. Were those facts that are now being used disputed in the first trial? This is an important question. If the current first degree charge rests on identical facts (plus a death) then the state is probably not going to be able to prosecute the first degree murder. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [July 3, 2012, 2:40pm UTC](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874/31 "2012-07-03T14:40:36Z")
> [@Rhythmdvl](#): > > It’s not based on similarity of evidence, it’s based on similarity of charges and jurisdiction. And if you could retry based on “new evidence”, it could lead police and prosecutors to withhold evidence or decline to seek it out hoping that they can “get another shot” at convicting the guy on the pretense of finding “another fingerprint”, “paint chips that the lab didn’t have the time to process”. e.g. Cop 1: “There are fingerprints over here on the doorknob, and there might be some on the walls too.” Cop 2: “The fingerprints from the door are enough. Don’t check the walls. If the guy gets acquitted, we’ll come back and ‘find’ fingerprints on the walls and then we can try him all over again and maybe we’ll get a better jury.” [Previous page](https://boards.straightdope.com/t/can-someone-explain-how-the-double-jeopardy-laws-work/609874.md?page=1)