Someone is jailed for murder, but a corpse is never found. After the accused has served his sentence, the supposed “victim” is found, alive and well. What’s to stop the guy accused of murder killing the victim for real this time?
…and thus is the plot summary of the movie by the same name.
In most countries where “Double Jeopardy” laws exist, pretty much nothing. They cannot be tried for murder again. But I’m sure there are plenty of other smaller crimes and misdemeanors the accused can be tried for, disturbing the peace maybe?
In the UK, however, re-trials are apparently allowed now with “new and compelling evidence”.
There’s no loophole. You don’t get to kill the guy. The movie was dumb.
Because there is a hole in your argument and it would be a second murder.
In your scenario, X was charged and convicted not just of killing Victim, but of killing him on Day 1 in the year 1975, let’s say. If X serves his time, gets released and then really kills Victim, this time on Day 365 of year year 2005, that’s a separate crime for which he could be charged and convicted. Crimes are committed on specific dates and times.
The police?
The guy served a sentence for a crime committed in some place at some time that in fact didn’t happen. However, I don’t think any society (certainly not USA and Canada) allows you to “save up” punishments for later application to other crimes. If the guy murdered the victim after getting released he would be guilty of another murder (and this time one that did happen). The fact that both crimes relate to the same victim doesn’t make them the same crime.
A criminal act is the commission of a particular crime at a particular time and place. That’s why child molesters can be charged with multiple counts of molestation of the same child.
So our putative killer is convicted of killing AB under circumstances defined in the indictment charging him with the crime, convicted, serves his sentence, and then AB is found, alive and well. If he then kills him, he’s committed a separate murder, that of killing AB in a different time and place than he was convicted of killing him in in the first trail. (Yes, I do know how strange that sentence sounds, but we’re dealing with a hypothetical situation from pretty far out in the Twilight Zone already, so tough!)
While the murder of a person is not something that you can normally be convicted of twice, given the circumstances suggested in the OP, it could constitute two different crimes. Although the finding of AB alive and well would constitute prima facie grounds for the killer to have his first sentence expunged, and perhaps to obtain a judgment for wrongful imprisonment.
To give an obvious example, a man is charged with and convicted of raping a woman and serves his time. Do you believe that he can now rape that woman freely forever because it’s the same crime? Of course not, it’s a different crime every time it occurs, thus the reason a person can be charged with multiple counts of the same crime.
I have to disagree with this reasoning. (If you haven’t seen the movie, don’t read this…and go rent the movie. It’s a good movie, even if the reasoning is flawed.)
[spoiler]In the movie “Double Jeopardy”, the man who was supposedly murdered staged his own murder for the purpose of having his wife, the supposed murderer, sent to prison, and so his son could collect life insurance money. The son’s guardian would have control of the insurance money and he resurfaces as another identity as the guardian’s new husband. The new identity didn’t really exist and for all practical purposes, the original man who was murdered was still dead because he no longer used that identity. Later on, the woman who was originally the son’s guardian was killed in a supposed accident and as her husband, he gets the money.
In theory, if she killed him and the body disappeared, the second identity that he assumed could never be proven dead because that person never really existed, and his original identity was already dead, so if it was done right, the wife could never be convicted of murder a second time.
Nobody’s going to go looking for the man that she originally murdered because he’s already dead. If someone goes to the police to report him missing as his new identity, they won’t be able to find that he ever existed and they won’t bother to look for him. So the wife gets her revenge and there are no consequences.[/spoiler]
Here’s an example of where double jeopardy to justify murder would not work.
A man (we’ll call John Doe) decides that his life sucks, his job sucks, everything sucks, and he wants to get away from it all. He finds a map of an island in the ocean that’s not claimed by anyone and he is going to go live there away from everything.
Before he leaves, he ties up some loose ends…files his taxes, closes bank accounts and credit cards and takes his boat and drops off the face of the earth without telling anyone where he’s going.
When he doesn’t show up for work the next week, the police start looking for him and see the closed accounts and such and regard it as suspicious. Meanwhile, a cow-orker who never got along with the guy says something out of context that makes the police look at him with suspicion. Through a series of unfortunate events, they charge the cow-orker with murder and put him in jail.
Fast forward 3 years later, John Doe decides he is tired of eating fish and coconuts and wants to go back to living a normal life. He returns home where everyone is shocked that he’s alive.
He goes to the police to let them know where he’s been and has indeed not been murdered. (As far as I can see, John Doe has committed no crime.) The cow-orker’s conviction is overturned and he is released from prison, gets a huge settlement from the state for putting him in jail in the first place, etc.
Now that John Doe is back in society, and as far as the courts can see, the cow-orker has not committed murder, if the cow-orker is pissed and kills the guy, he CAN be convicted of murder because his original conviction was overturned. It was known that the original murder never took place, so it wouldn’t be double jeopardy.
No, no, no, no and no.. Absolutely not. This is a myth. It is untrue. It applies only in the land of elves and ferries.
Oh fine…ruin the fun for me…
I really shouldn’t trust my brain.
What about this scenario?:
A well-known painting, valued at $10 million, is stolen from the Metropolis Art Museum. Though the painting is not found, John Doe, through circumstantial evidence, is convicted of its theft, and serves 10 years in prison or the crime.
After John Doe has served his time, the painting is found, and returns to the Metropolis Art Museum. Can John Doe now walk into the museum, tell the guards, “I’ve already done the time for this: now I’m going to do the crime,” and take the painting?
I think not:
(1) It’s a new crime, more than 10 years after the first one.
(2) The painting still belongs to the museum, since serving prison doesn’t give you ownership of what you were convicted of stealing.
If you’ll read the thread (except for nocturnal_tick’s first post) you will see that the second murder can be tried even if the first was never overturned, because it is a different crime. As zamboniracer, dmartin, Polycarp, and others all pointed out, double jeopardy protects a person from twice being tried for the same crime - in law and fact. A murder committed on Tuesday is not the same crime as a murder committed on Wednesday. The two crimes are identical in law, but not in fact. For double jeopardy to kick in, they must be identical in law and fact.
(Note that whether two crimes are identical in law is a somewhat complex question, resolved by the analysis promulgated in a case called Blockburger v. US.) For our discussion, we’re talking about “murder” both times, so we need not delve into Blockburger analysis.
It’s nice to be recognised. Wait a minute…it isn’t! :o 
If I may hijack so as to try to cover up my apparent ignorance. What if…?
Sue is put on trial for the murder of Bob at location X at time Y in such a way thay it appears Bob was killed at location Z (or time Z). Sue is found innocent but lin the future it is found that Bob did indeed die at location X (or time Y).
Can Sue be tried for the murder of Bob again?
Ah. I’ve always wondered how elves got across the bay. 
I just finished watching “Exhibit A: The Secrets of Forensic Science” on the Discovery Channel. It’s the forensic show hosted by Graham Greene. The episode named “Double Jeopardy” shows a case where a murderer goes free because he cannont be tried for the same crime twice. It’s not the situation described in the OP but demonstrates the point being made that the crime is the one commited in the original time and place.
Quick synopsis:
A murders B and leaves the shotgun in a position that suggests suicide.
A goes on trial and is cleared, the death is ruled a suicide.
Mother of B cannont accept this and starts her own investigaton sending the evidence to prominent crime scene investigators.
Results start to come back in her favor.
Mother of B contacts the authorities who can convene an inquest with the evidece.
Inquest is convened and juiry finds the original decision to be wrong. It was in fact a murder.
A cannot be re-tried due to double jeopardy and remains free.
Mother of B dies 2 years later due to cancer.
Uplifting story eh?
Excellent question.
It depends.
No matter what happens with a set of facts like this, I guarantee you Sue wil raise the spectre of double jeopardy, and a court will rule on its application to the facts.
Part of the protections of double jeopardy can be analyzed by applying the closely related principles of collateral estoppel. This is a principle that once an issue of fact between two parties has been fully and finally litigated, it may not be re-litigated. This is sometimes called “issue preclusion.”
It’s unclear to me from your question what the prosecution’s theory of the case was. Did the prosecution’s indictment charge time/location Z? Is there enough variance between Z and X/Y to make the two crimes materially different in fact?
In other words, if Sue is charged with murder for killing Bob on January 25th, and it later comes out that he was killed shortly after midnight, making it January 26th, her acquittal will almost certainly serve as a bar to subsequent reprosecution. The prosecution’s indictment will allege that Sue killed Bob “on or about” January 25th. This slight variance in facts is not material or fatally defective to the indictment.
On the other hand, if Sue is charged with killing Bob on January 25th, and acquitted, and it later develops that Bob was killed on February 25th, it’s likely she can be tried again.
It depends. Even that length of time may be irrelevant. If Bob and Sue were stranded on an island, and Sue rescued two years later, Bob’s bullet-ridden skull may prove Sue’s complicity in the murder, even if the excat day is not known. In that case, the indictment would allege “between January 2004 and January 2005.”
In short - the question is, “Did the jury’s acquittal of Sue the first time eliminate the set of facts she’s now charged with?” The jury decided Sue was innocent of the set of facts they were presented with. The government can’t revist that decision - but they may be able to ask another jury if she did something else at another time.
Does that make sense?
I vaguely recall a double jeopardy case about 20 years ago. I hope I’ve remembered the situation right but anyway.
A guy was tried and acquited of a homicide of one kind or another, murder, manslaughter or whatever. It turned out on further investigation that the killing had actually taken place in another jurisdiction. As I remember the news report, he was retried in the jurisdiction where the crime was actually committed.