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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [April 22, 2005, 6:52pm UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/5 "2005-04-22T18:52:27Z")
Double jeopardy is prohibited by the Fifth and Fourteenth Amendments to the U.S. Constitution, and I believe by most state constitutions as well.
However, it does have limits:
[ul][li]It debars a second prosecution after a **properly conducted** criminal trial. A mistrial or reversible error voids the _conviction_, not the _accusation_; the accused may again be compelled to stand trial.[/li][li]It relates to a single criminal act committed at a given time and place. That act may result in more than one crime being alleged, so long as they all relate to a single criminal act. (E.g., the accused allegedly entered the victim’s house to steal the $10,000 the victim had stashed beneath the entertainment center. On being confronted by the victim, he held him at gunpoint while removing the money, then thought better of leaving him as a witness and shot to kill. Here we have a single criminal act producing burglary, grand theft/larceny, robbery, and attempted murder.)[/li][li]It is chargeable in a single jurisdiction. If, for example, robbery is a state crime and bank robbery is a federal crime, both may prosecute; they are separate jurisdictions. Presumably shooting at someone across a state line might result in indictments in both states.[/ul][/li]
Examples of things that are **not** double jeopardy are rife. In fact, there was recently a discussion of the movie _Double Jeopardy_ in this forum, and the conclusion reached was that the person wrongfully convicted of murdering the victim whom he then killed was not protected. He was convicted (erroneously) of killing her at Place X on Date Y. That is a quite separate criminal act from his actually killing her at Place M on Date N. Repeated acts of assault or child molestation are other examples where each criminal act constitutes a separate crime.
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### Author:  [@Turek](https://boards.straightdope.com/u/Turek)
#### Post date: [April 22, 2005, 9:02pm UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/6 "2005-04-22T21:02:40Z")
Something this may hinge on: if someone is tried for murder, can the jury then return a verdict of manslaughter instead? Or can the jury only return a verdict of guilty or not guilty of murder?
If the jury CAN return a verdict of guilty of manslaughter, does that then prevent the person later being retried for murder for the same act? Meaning, a finding of guilty of manslaughter implies a finding of not guilty of murder.
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### Author:  [@Mops](https://boards.straightdope.com/u/Mops)
#### Post date: [April 22, 2005, 9:03pm UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/7 "2005-04-22T21:03:37Z")
> [@Polycarp](#):
>
> … Repeated acts of assault or child molestation are other examples where each criminal act constitutes a separate crime.
So it would be a logical strategy for the prosecution against a serial murderer to leave some cases out of the indictment, in order to get a second chance if needed? Do prosecutors in fact do this?
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### Author:  [@ageless6](https://boards.straightdope.com/u/ageless6)
#### Post date: [April 22, 2005, 9:09pm UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/8 "2005-04-22T21:09:07Z")
> [@InvisibleWombat](#):
>
> IANAL, but it’s my understanding that only the defense can appeal, not the prosecution. The prosecutors get one chance, and one only.
>
> As an aside, the picture of that guy in the article is positively creepy.
Yes, he looks positively like you would want a maniacal cannibal to look, doesn’t he? And look at those lips; he looks like he just came back from a liver tartar lunch. His expression is much like ‘the cat that ate the Canadian’, or whatever it was.
But why should he be re-tried. No one thinks OJ should be re-tried, do they?
[sup]Well do they?[/sup]
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### Author:  [@The\_Scrivener](https://boards.straightdope.com/u/The_Scrivener)
#### Post date: [April 22, 2005, 10:06pm UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/9 "2005-04-22T22:06:31Z")
In this case, it’s not double jeopardy so much as _leftovers_.
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [April 22, 2005, 11:36pm UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/10 "2005-04-22T23:36:43Z")
> [@Turek](#):
>
> Something this may hinge on: if someone is tried for murder, can the jury then return a verdict of manslaughter instead? Or can the jury only return a verdict of guilty or not guilty of murder?
>
> If the jury CAN return a verdict of guilty of manslaughter, does that then prevent the person later being retried for murder for the same act? Meaning, a finding of guilty of manslaughter implies a finding of not guilty of murder.
What you’re getting at here is the concept of “lesser included offense.” A given criminal act may constitute a whole bunch of crimes. For example, a man premeditatedly stabs another man to death with a knife. That’s premeditated murder. But because it was a criminal act leading directly to a death, it’s also manslaughter. It’s also assault with a deadly weapon, and simple assault, as it would be if he lunged at him with the knife and missed. There may be a couple of other crimes I’m missing in that as well.
The judge’s instructions will make clear to the jury what they need to determine in order to convict of the major crime(s) charged and also of each lesser included offense. For example, if the jury cannot decide beyond a shadow of a doubt that there was premeditation, but they’re certain it was an intentional killing, they can convict of manslaughter. If they’re convinced that the killer’s intent was to menace but not to kill, and the killing was the result of him slipping as he lunged at the victim with the knife to menace rather than to harm, they might convict of assault with a deadly weapon or involuntary manslaughter. Whole bunches of possibilities. And yes, a conviction on a lesser included offense will be a finding of not guilty with respect to the highest charge.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [April 23, 2005, 12:37am UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/11 "2005-04-23T00:37:00Z")
> [@Polycarp](#):
>
> The judge’s instructions will make clear to the jury what they need to determine in order to convict of the major crime(s) charged and also of each lesser included offense. For example, if the jury cannot decide beyond a shadow of a doubt that there was premeditation, but they’re certain it was an intentional killing, they can convict of manslaughter. If they’re convinced that the killer’s intent was to menace but not to kill, and the killing was the result of him slipping as he lunged at the victim with the knife to menace rather than to harm, they might convict of assault with a deadly weapon or involuntary manslaughter. Whole bunches of possibilities. And yes, a conviction on a lesser included offense will be a finding of not guilty with respect to the highest charge.
It’s worth mentioning that the judge does not simply charge the jury with instructions for all the lesser included. The judge will instruct the jury on all the crimes in the indictment. Sometimes the prosecution will not charge lesser-included. This is a strategic decision: if they charge both murder and manslaughter, the jury may compromise on manslaughter; if they have only a choice between murder and acquittal, they may (so the thinking goes) choose murder over a walk.
The defense gets a voice in this as well, though. The defense may demand an instruction on any lesser-included offense that is suported by the evidence. Again, the defense uses this as a strategic move – if you give the jury a chance to convict on manslaughter, they may take it… but if they have to find murder, they may just let your guy walk.
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### Author:  [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)
#### Post date: [April 23, 2005, 12:47am UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/12 "2005-04-23T00:47:33Z")
If I’m not mistaken, there’s a Doper who knew the victim. Which one though, I cannot remember.
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### Author:  [@Revtim](https://boards.straightdope.com/u/Revtim)
#### Post date: [April 23, 2005, 1:06am UTC](https://boards.straightdope.com/t/cannibal-gets-retried-double-jeopardy/300605/13 "2005-04-23T01:06:08Z")
That was me.