# Doper Lawyers: Can a person be tried for a "same but different" crime? **URL:** \ **Category:** Factual Questions\ **Created:** [January 18, 2006, 1:19am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448 "2006-01-18T01:19:49Z")\ **Posts on this page:** 12\ **Page:** 1
**Author:** ![I\_Love\_Me\_Vol.I](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/i_love_me_vol.i/32/521_2.png) [@I\_Love\_Me\_Vol.I](https://boards.straightdope.com/u/I_Love_Me_Vol.I)\ **Post date:** [January 18, 2006, 1:19am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/1 "2006-01-18T01:19:49Z")
The question speaks for itself. …wait a minute… no it doesn’t !! So I’ll explain: As I was reading [this](http://www.cnn.com/2006/LAW/01/17/btsc.rowlands/index.html) story– > [@](#): > > Watts and her boyfriend, Lane, had lived together for 2-months. He was charged with murder and tried. But at that time neither Watts nor the jury - perhaps swayed by Watts - believed Lane guilty and he was acquitted… > > …Lane insisted he was innocent for another decade and when he finally confessed to Salt Lake City police a few months ago, there was nothing the justice system could do. He had been tried and acquitted and under the “double jeopardy” could not be tried again. –a question occurred to me. Can prosecutors get around the “double jeopardy” thingie by charging the alleged criminal with a different crime? In the case linked to above, for example, the alleged murderer can not be charged again with the murder of the baby because he has already been acquited of that crime. But can he be charged with aggravated assault instead? Why or why not? ---
**Author:** ![constantine](https://avatars.discourse-cdn.com/v4/letter/c/3bc359/32.png) [@constantine](https://boards.straightdope.com/u/constantine)\ **Post date:** [January 18, 2006, 1:44am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/2 "2006-01-18T01:44:40Z")
> [@I Love Me](#): > > The question speaks for itself. > > …wait a minute… no it doesn’t !! > > So I’ll explain: As I was reading [this](http://www.cnn.com/2006/LAW/01/17/btsc.rowlands/index.html) story– > > –a question occurred to me. Can prosecutors get around the “double jeopardy” thingie by charging the alleged criminal with a different crime? In the case linked to above, for example, the alleged murderer can not be charged again with the murder of the baby because he has already been acquited of that crime. But can he be charged with aggravated assault instead? > > Why or why not? Obligatory disclaimer: I am interpreting your question as motivated by general curiosity about American law, and I will answer your question based on general principles of American law. I am not offering you legal advice. I am not your lawyer, and you are not my client. There may be caselaw or statutes in your jurisdiction that apply to this situation.If your question is motivated by anything other than curiosity, you should consult a lawyer licensed in your jurisdiction. With that out of the way, on to your question. The prosecutors cannot get around the double jeopardy issue by charging him with aggravated assault, (or assault, or manslaughter, etc.), because aggravated assault is a “lesser included offense.” The idea of barring prosecution for a lesser included offense is to plug exactly the potential loophole that you have identified. Otherwise, the prosecutor could just keep retrying the defendant for increasingly less serious charges. In most cases, as here, the issue is absolutely cut and dried, although there are occasionally close questions. But in this case, as I said, it’s pretty cut and dried. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 18, 2006, 1:51am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/3 "2006-01-18T01:51:42Z")
This question has been discussed many, many times before. Do a search on “double jeopardy” and “lesser included offense” and read away. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [January 18, 2006, 1:59am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/4 "2006-01-18T01:59:07Z")
One thing that can happen is he can be charged in another jurisdiction. For example, the federal prosecutor may be able to try him under civil rights law. This is how they got a few KKK guys who were acquitted for murder many years ago when new evidence arose. They were convicted of violating the civil rights of their victims. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [January 18, 2006, 3:12am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/5 "2006-01-18T03:12:37Z")
All is made clear, here. > **[Question for Beryl\_Mooncalf](https://boards.straightdope.com/sdmb/showthread.php?t=211820)** > > In this thread, I asked Beryl\_mooncalf a question which he or she dodged and ultimately refused to answer, suggesting that it was a hijack. Which, I’m prepared to concede, it was, although tangentially relevant to the OP. But, given Beryl\_Mooncalf’s... ---
**Author:** ![I\_Love\_Me\_Vol.I](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/i_love_me_vol.i/32/521_2.png) [@I\_Love\_Me\_Vol.I](https://boards.straightdope.com/u/I_Love_Me_Vol.I)\ **Post date:** [January 18, 2006, 6:27am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/6 "2006-01-18T06:27:18Z")
damn— sorry… i have to admit (though i probably shouldn’t) that while i am usually a good doper and check for previous threads, i did not do so this time. sorry-- and thanks for the help. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 18, 2006, 7:42am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/7 "2006-01-18T07:42:41Z")
If he ever testified in his trial he could be charged with perjury. He also may have committed other criminal offenses in relation to the murder that wouldn’t qualify as a “lesser included” offense. I also think the mother in that situation is contemptible, I’ve always had an extremely negative view of women who blind themselves to people who abuse their children out of whatever complex emotional bullshit blinders they seem to wear. Of course a lot of possible crimes he could have committed in connection with the murder that wouldn’t be lesser included offenses probably had their statute of limitations expire long ago. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [January 18, 2006, 9:55am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/8 "2006-01-18T09:55:46Z")
> [@I Love Me](#): > > damn— sorry… i have to admit (though i probably shouldn’t) that while i am usually a good doper and check for previous threads, i did not do so this time. sorry-- and thanks for the help. It’s difficult to search if you don’t know what to search for. In this case, knowing the correct phrase (“lesser included offense”) pretty much implies knowing the answer. ---
**Author:** ![Neptunian\_Slug](https://avatars.discourse-cdn.com/v4/letter/n/ce7236/32.png) [@Neptunian\_Slug](https://boards.straightdope.com/u/Neptunian_Slug)\ **Post date:** [January 19, 2006, 12:03am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/9 "2006-01-19T00:03:57Z")
> [@constantine](#): > > The prosecutors cannot get around the double jeopardy issue by charging him with aggravated assault, (or assault, or manslaughter, etc.), because aggravated assault is a “lesser included offense.” > > The idea of barring prosecution for a lesser included offense is to plug exactly the potential loophole that you have identified. Otherwise, the prosecutor could just keep retrying the defendant for increasingly less serious charges. > > In most cases, as here, the issue is absolutely cut and dried, although there are occasionally close questions. But in this case, as I said, it’s pretty cut and dried. Constantine, with the understanding that you are not my lawyer, blah, blah, blah… In the Rodney King situation, which may or may not have been discussed here, the state after the acquittal, turned the case over to the Feds who charged the officers with violating King’s civil rights. How does prosecution in this case get around violating civil rights as a lesser included charge? Does that Federal crime only apply in situations where race is an issue? If not, why wouldn’t this loophole be available to the case above? ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [January 19, 2006, 3:47am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/10 "2006-01-19T03:47:28Z")
The way I understand it, the State of California didn’t turn prosecution of the accused over the federal government. The federal government awaited the outcome of the California trial and only then did they proceed with trying the accused for the civil rights violations. Note also that is not a lesser included offense of the assualt, etc., charges tried by the State. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 19, 2006, 5:04am UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/11 "2006-01-19T05:04:01Z")
E-Diddy there are a few exceptions to double jeopardy, and in general in the U.S. the whole federal jurisdiction thing is one of them. You can be tried for the precise same action you were aquitted of in State court if it constitutes a different type of crime in a Federal court (murder in state court, violation of civil liberties in Federal court.) There’s a few “exceptions” to double jeopardy. One is the one I mentioned above. Another is when a case is dismissed or when it comes out a mistrial, mistrials can be brought around for trial again, and in the case of it being dismissed it depends on jurisdiction, some jurisdictions it’s final some it is not. If the defendant conducted a fraud against the court system to get acquitted, then he can be retried without it violating the double jeopardy penalty, because the logic goes if the trial was a foregone conclusion he wasn’t truly in jeopardy the first time. Example would be cases where the defendant bribed a judge or the jury, and the SCOTUS has ruled in such cases the prosecution can try the man again in spite of his acquittal. The government can also in some cases appeal a sentence, if the judge overrules a jury verdict the prosecutor can appeal to have the original jury verdict reinstated. In some countries, Canada being one example, if there is a procedural/legal error at the trial court a prosecutor can appeal an acquittal. ---
**Author:** ![scm1001](https://avatars.discourse-cdn.com/v4/letter/s/c4cdca/32.png) [@scm1001](https://boards.straightdope.com/u/scm1001)\ **Post date:** [January 19, 2006, 4:20pm UTC](https://boards.straightdope.com/t/doper-lawyers-can-a-person-be-tried-for-a-same-but-different-crime/340448/12 "2006-01-19T16:20:13Z")
> [@Martin Hyde](#): > > If he ever testified in his trial he could be charged with perjury. > > . yes but if his confession was off the record or not under oath then it all he would have to do in court is say he was lying about his confession.