# Crime committed, it must be one of two people but they don't know which one **URL:** \ **Category:** Factual Questions\ **Created:** [October 23, 2012, 1:02am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583 "2012-10-23T01:02:39Z")\ **Posts on this page:** 20\ **Page:** 1
**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:** [October 23, 2012, 1:02am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/1 "2012-10-23T01:02:39Z")
Supposing there’s a crime, and it can be proved that one of two people must have committed it, but it can’t be determined which one. What would the prosecutor most likely do? References to specific jurisdictions appreciated. Need answer fast! (Not really.) ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [October 23, 2012, 1:12am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/2 "2012-10-23T01:12:16Z")
Have the police look for more evidence. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [October 23, 2012, 1:40am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/3 "2012-10-23T01:40:30Z")
On one episode of _Law & Order_, DA Jack McCoy denied two accused a single trial and tried them separately, arguing in each trial that that suspect had done the crime. When the defense lawyers cried foul, McCoy said that there was nothing obligating the District Attorney’s office to present a consistent theory of the crime. How realistic this is, I have no idea. ETA: one of many dirty tricks that led me to refer to DA McCoy as “The Grand Inquisitor of New York”. ---
**Author:** ![Ethilrist](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ethilrist/32/4604_2.png) [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)\ **Post date:** [October 23, 2012, 1:56am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/4 "2012-10-23T01:56:45Z")
Ooh! I know this one! Offer to cut the baby in half. Wait, that was a different case. Never mind. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [October 23, 2012, 2:22am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/5 "2012-10-23T02:22:44Z")
This situation can often be the case in infant murders. The couple is home alone with the baby, the baby dies through non-natural causes, and each adult denies responsibility. (I think that was the situation in the Law and Order episode). I assume both could be charged but I’m not sure how that would play in court. ---
**Author:** ![John\_H\_1](https://avatars.discourse-cdn.com/v4/letter/j/e9bcb4/32.png) [@John\_H\_1](https://boards.straightdope.com/u/John_H_1)\ **Post date:** [October 23, 2012, 3:02am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/6 "2012-10-23T03:02:05Z")
This also happens some times in crimes where DNA evidence is involved. If the matching suspect has an identical twin then the DNA evidence points equally to either. The options are use secondary evidence and try one, try both, or don’t try at all. My guess is that most prosecutors would try both rather than not trying at all. A quick google search brought up a case where both were let off and another case where one of the two was conviceted. I couldn’t find any cases where both were convicted but I didn’t look very hard (if such a case exists it would be interesting to read about). I think it’s legally possible to convict two people for the same crime, though somebody else already being convicted of a crime would meet my definition of ‘reasonable doubt’. ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [October 23, 2012, 3:33am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/7 "2012-10-23T03:33:12Z")
The police (interrogators) would be the ones who deal with this, not prosecutors. The police will interrogate both in separate chambers, and they will fabricate evidence indicating the person committed the crime (made up video, made up eyewitnesses, made up lab tests, etc). The innocent person will get angry and (usually) the guilty person will start confessing. Fabricating evidence is a time tested method of getting people who you think are guilty to start talking, because then they lose hope that they will walk away from the interrogation w/o being indicted. That can then be used as leverage to manipulate them into giving even more info. In a confession the innocent person is usually submissive as the interrogation starts but becomes dominant as time passes. The guilty person will start the interrogation dominant but will become more subdued and submissive as time passes. Usually. ---
**Author:** ![njtt](https://avatars.discourse-cdn.com/v4/letter/n/ecd19e/32.png) [@njtt](https://boards.straightdope.com/u/njtt)\ **Post date:** [October 23, 2012, 3:43am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/8 "2012-10-23T03:43:04Z")
The short and simple answer is that if you can’t actually prove, for whatever reason, that a particular person did a crime, then you have to let them go. Actually guilty people go free all the time for lack of sufficient evidence against them, and the justice system is specifically designed so that this should be so, rather than having innocent people getting punished all the time. (Innocent people do still get punished occasionally, but not nearly as often as guilty ones go free, AND THAT IS A GOOD THING.) ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 23, 2012, 3:49am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/9 "2012-10-23T03:49:25Z")
> [@matt\_mcl](#): > > Supposing there’s a crime, and it can be proved that one of two people must have committed it, but it can’t be determined which one. What would the prosecutor most likely do? References to specific jurisdictions appreciated. Need answer fast! (Not really.) The answer to the OP and notwithstanding the other responses here, in the absence of evidence, the proper action would be to let them go and I really cannot imagine any prosecutor behaving properly, who would not do this. A prosecutors duty is to serve justice, not to get a conviction at any cost. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [October 23, 2012, 4:49am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/10 "2012-10-23T04:49:04Z")
> [@Wesley\_Clark](#): > > The police will interrogate both in separate chambers, Not if the suspects have the good sense to assert their right to remain silent and obtain counsel. Of course, many suspects don’t do that. ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [October 23, 2012, 5:08am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/11 "2012-10-23T05:08:20Z")
> [@Oakminster](#): > > Not if the suspects have the good sense to assert their right to remain silent and obtain counsel. Of course, many suspects don’t do that. The vast majority don’t. Stanley Milgram showed most people will torture someone to death because an authority figure told them to. People have trouble standing up to the police and the police know how to use that trust and intimidation to coerce people. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [October 23, 2012, 5:14am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/12 "2012-10-23T05:14:45Z")
> [@Lumpy](#): > > On one episode of _Law & Order_, DA Jack McCoy denied two accused a single trial and tried them separately, arguing in each trial that that suspect had done the crime. When the defense lawyers cried foul, McCoy said that there was nothing obligating the District Attorney’s office to present a consistent theory of the crime. How realistic this is, I have no idea. IIRC, he only came up with this idea when the inexperienced public defender working for one of the defendants moved to sever the trial. Obviously it wouldn’t work if both defendants were being tried together. ---
**Author:** ![jdubs](https://avatars.discourse-cdn.com/v4/letter/j/cdc98d/32.png) [@jdubs](https://boards.straightdope.com/u/jdubs)\ **Post date:** [October 23, 2012, 5:24am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/13 "2012-10-23T05:24:13Z")
I’m a defense attorney, so I speak from a practical perspective. While the mission statement for the State’s Attorneys office is to “seek justice,” prosecutors would almost certainly charge both individuals and hope, at minimum, to plead them out. From a philosophical viewpoint, we hope for justice but, practically speaking, these decisions are based almost entirely on leverage. A good prosecutor might dismiss the weaker case, but both individuals are getting charged. Heck, if you can definitively say that one of two people committed the crime, you are already starting from a stronger position than most cases–from a prosecutorial POV. My job is,amongst other things, to call BS. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [October 23, 2012, 7:22am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/14 "2012-10-23T07:22:03Z")
[A previous thread on essentially the same topic.](http://boards.straightdope.com/sdmb/showthread.php?t=557310) There are actual real-life examples linked to in that thread. ---
**Author:** ![Simple\_Linctus](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Simple\_Linctus](https://boards.straightdope.com/u/Simple_Linctus)\ **Post date:** [October 23, 2012, 7:30am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/15 "2012-10-23T07:30:03Z")
And another example that I coudln’t find in that thread - where the death penalty was involved. This is in Malysia with a common law tradition inherited from the UK. In this case both were charged. But both aquitted - by the judge. > [@](#): > > KUALA LUMPUR, Malaysia (AP) — Identical twin brothers escaped the death penalty in a Malaysian drug trafficking trial after the court ruled that the authorities could not prove which man had committed the crime, news reports said Saturday. > > The judge in the case was quoted by The New Straits Times as saying that she “can’t be sending the wrong person to the gallows.” [Link](http://www.nytimes.com/2009/02/08/world/asia/08malaysia.html) ---
**Author:** ![Simple\_Linctus](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Simple\_Linctus](https://boards.straightdope.com/u/Simple_Linctus)\ **Post date:** [October 23, 2012, 7:33am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/16 "2012-10-23T07:33:01Z")
> [@Wesley\_Clark](#): > > The police (interrogators) would be the ones who deal with this, not prosecutors. The police will interrogate both in separate chambers, and they will fabricate evidence indicating the person committed the crime (made up video, made up eyewitnesses, made up lab tests, etc). The innocent person will get angry and (usually) the guilty person will start confessing. Fabricating evidence is a time tested method of getting people who you think are guilty to start talking, because then they lose hope that they will walk away from the interrogation w/o being indicted. That can then be used as leverage to manipulate them into giving even more info. > > In a confession the innocent person is usually submissive as the interrogation starts but becomes dominant as time passes. The guilty person will start the interrogation dominant but will become more subdued and submissive as time passes. > > Usually. That depends on the juristriction, you would not be allowed to do that in the UK for example. Police and Criminal Evidence act, innit. This is to guard against the enormous number of false confessions that the approach you are referring to produces. You’re not allowed to use the Reid technique either. ---
**Author:** ![panamajack](https://avatars.discourse-cdn.com/v4/letter/p/47e85d/32.png) [@panamajack](https://boards.straightdope.com/u/panamajack)\ **Post date:** [October 23, 2012, 7:47am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/17 "2012-10-23T07:47:43Z")
Related question: Can you plead guilty to a crime that someone else has been convicted of? I’m assuming that two people can plead guilty to the same crime, but is that even true as well? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 23, 2012, 9:01am UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/18 "2012-10-23T09:01:09Z")
> [@panamajack](#): > > Related question: Can you plead guilty to a crime that someone else has been convicted of? I’m assuming that two people can plead guilty to the same crime, but is that even true as well? You can say “it was me gov” to your heart’s content. But, while a conviction holds the field, you can never plead guilty to that crime, for the simple reason no one is never going indict and put you on trial and thus you will never be arraigned and asked to enter a plea. ---
**Author:** ![Sailboat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sailboat/32/461_2.png) [@Sailboat](https://boards.straightdope.com/u/Sailboat)\ **Post date:** [October 23, 2012, 1:48pm UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/19 "2012-10-23T13:48:08Z")
I foresee a future in which we are oppressed by the reign of terror of identical twins! ---
**Author:** ![Mijin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mijin/32/9369_2.png) [@Mijin](https://boards.straightdope.com/u/Mijin)\ **Post date:** [October 23, 2012, 2:05pm UTC](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583/20 "2012-10-23T14:05:54Z")
The last time something like this was Doped, it was two co-conspirators committing a crime, then under questioning both say they are innocent and it was all the other guy. In fact, each person alleges they were trying to _prevent_ the crime. I think the consensus there was, absent any other evidence, and if no individual account can be shown to be self-contradictory (Columbo doesn’t show up), they walk free. [Next page](https://boards.straightdope.com/t/crime-committed-it-must-be-one-of-two-people-but-they-dont-know-which-one/638583.md?page=2)