# Double Jeopardy question **URL:** \ **Category:** Factual Questions\ **Created:** [October 21, 2012, 2:37am UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378 "2012-10-21T02:37:19Z")\ **Posts on this page:** 10\ **Page:** 2
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [October 21, 2012, 8:07pm UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/21 "2012-10-21T20:07:45Z")
> [@friedo](#): > > There’s a classic _Law & Order_ episode where two guys are suspected of a murder, but each accuses the other of pulling the trigger. It’s obvious that both were involved and _one_ of them did it, but there’s no evidence that proves which one it was. So wily McCoy takes advantage of a defense motion to sever the trials, and advances a separate theory of the crime in each trial, convicting both of being the shooter at the same time, a physical impossibility. > > No idea how practical that scenario would be in real life, but I thought it was pretty clever. I recall that episode. It was two women, actually, each killing the other’s husband. McCoy was able to get away with his “shenanigan” (if such it was) because he wasn’t prosecuting both cases (in fact, he couldn’t, the cases were being litigated at the same time). Once his usual improbably-hot junior ADA had won the stronger case, they were able to convince the now-convicted confederate to testify against the other in exhcange for a lighter sentence. I am not a lawyer, of course, but it didn’t bother me. Seemed eminently fair. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [October 22, 2012, 2:50am UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/22 "2012-10-22T02:50:26Z")
> [@jtgain](#): > > What about Full Faith and Credit? If a California court finds that I was in Los Angeles on April 14, 2009 at 10pm PST committing a robbery, wouldn’t that finding of fact preclude a murder trial in Miami accusing me of murder in Miami on April 15, 2009 at 1am EST? I’m out of my depth here, but I think the FFC clause says that one state must enforce another state’s adjudication of the rights of parties A and B in a dispute, but only as between A and B, and not as to party C. It’s an issue of fairness to party C, who was not part of the first lawsuit, because C has not had an opportunity to make its case. A’s interest in suing B may differ in some ways from C’s interest in suing B, so it may have presented its case differently, weighted its evidence to emphasize certain facts and not others. Or, bluntly, A simply might have presented its case badly. Generally speaking, C has a due process right to have its own rights against B adjudicated. > [@jtgain](#): > > Wouldn’t res judicata come into play? “Your Honor a court of competent jurisdiction has established that I was committing robbery at the exact time I was supposedly committing murder in Miami. This Court must accept that issue of fact as settled and not allow any arguments that I was in Miami.” Res judicata (aka claim preclusion) is essentially just a subset of collateral estoppel (issue preclusion). Res judicata applies when an entire claim (i.e., every element of a cause of action) has been previously adjudicated, whereas collateral estoppel applies against individual elements. In this example, only collateral estoppel is in play, because the only element in common is location. The first conviction did not establish all of the elements of the murder. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [October 22, 2012, 12:24pm UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/23 "2012-10-22T12:24:29Z")
> [@Tom\_Tildrum](#): > > However, if the prosecution can show that you committed perjury in the course of being convicted in the first case, you probably can’t invoke collateral estoppel in the second case, since the issue wasn’t genuinely litigated the first time. There’s a story – THE JAILHOUSE LAWYER, by Phillip Margolin – where the defendant **doesn’t** commit perjury the first time; he just plays the Angry Black Man who gets warned about contempt and sneers that _“I got no respect fo’ a honkey pig”_ while on trial for reckless driving in Oregon. So he acts as his own lawyer (and, yes, the ‘fool for a client’ quote comes up; and, yes, he predictably fails to object to inadmissible testimony) sure as he doesn’t bother to take the stand while unconvincingly maintaining his innocence throughout; he thus later proves he wasn’t simultaneously murdering someone in New Jersey, since, hey, that was the judge’s authoritative verdict back when a cop swore to it on the stand, right? (Why didn’t the defendant request a jury? _“One pig or six fascist sheep, it don’t make no difference.”_) ---
**Author:** ![Nuveena](https://avatars.discourse-cdn.com/v4/letter/n/a587f6/32.png) [@Nuveena](https://boards.straightdope.com/u/Nuveena)\ **Post date:** [October 23, 2012, 12:19am UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/24 "2012-10-23T00:19:06Z")
> [@Skald\_the\_Rhymer](#): > > I recall that episode. It was two women, actually, each killing the other’s husband. McCoy was able to get away with his “shenanigan” (if such it was) because he wasn’t prosecuting both cases (in fact, he couldn’t, the cases were being litigated at the same time). Once his usual improbably-hot junior ADA had won the stronger case, they were able to convince the now-convicted confederate to testify against the other in exhcange for a lighter sentence. > > I am not a lawyer, of course, but it didn’t bother me. Seemed eminently fair. No, not that one. Two kids (one of them later starred in It’s Always Sunny in Philadelphia) planned to shoot a food delivery driver just to see what it was like, but one of them got cold feet. Both kids were pointing the finger at each other, but then McCoy tricked the dumber lawyer into moving to sever the cases. The judge said that no matter what a logician would say, there was nothing legally precluding the state from arguing two mutually exclusive theories at simultaneous trials. it was the simultaneous bit that made it work. If one was tried and convicted first, the other one would likely be acquitted. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 23, 2012, 12:52am UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/25 "2012-10-23T00:52:18Z")
> [@Tom\_Tildrum](#): > > I’m out of my depth here, but I think the FFC clause says that one state must enforce another state’s adjudication of the rights of parties A and B in a dispute, but only as between A and B, and not as to party C. > > It’s an issue of fairness to party C, who was not part of the first lawsuit, because C has not had an opportunity to make its case. A’s interest in suing B may differ in some ways from C’s interest in suing B, so it may have presented its case differently, weighted its evidence to emphasize certain facts and not others. Or, bluntly, A simply might have presented its case badly. Generally speaking, C has a due process right to have its own rights against B adjudicated. Very good point and I believe you are correct. In my scenario, Florida could argue that the prosecutor in California blew the pooch and he is entitled to take a shot at the Defendant. Although, do government agents have “due process” rights? ---
**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:** [October 23, 2012, 12:57am UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/26 "2012-10-23T00:57:45Z")
> [@jtgain](#): > > Very good point and I believe you are correct. In my scenario, Florida could argue that the prosecutor in California blew the pooch and he is entitled to take a shot at the Defendant. Although, do government agents have “due process” rights? It is common knowledge that defendants are entitled to due process and that they may be able to object to proceedings if they are denied due process and may be entitled to have the charges vacated and possibly retried. But does the _government_ have the right to due process in its own courts if it does not object the first time around? For example, if I am charged with DUI by a County DA and I win at trial in County Court, can the DA come back and say that the County was denied its fair due process in County Court and must be allowed to try to convict me again? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 23, 2012, 3:51pm UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/27 "2012-10-23T15:51:34Z")
> [@robert\_columbia](#): > > It is common knowledge that defendants are entitled to due process and that they may be able to object to proceedings if they are denied due process and may be entitled to have the charges vacated and possibly retried. > > But does the _government_ have the right to due process in its own courts if it does not object the first time around? For example, if I am charged with DUI by a County DA and I win at trial in County Court, can the DA come back and say that the County was denied its fair due process in County Court and must be allowed to try to convict me again? No – that’s at the heart of the double jeopardy defense. Although if the trial was simply rigged – that is, if you bribed the judge, let’s say, and so were never truly in jeopardy – the state might get another shot at you. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 23, 2012, 5:14pm UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/28 "2012-10-23T17:14:25Z")
> [@jtgain](#): > > Wouldn’t res judicata come into play? “Your Honor a court of competent jurisdiction has established that I was committing robbery at the exact time I was supposedly committing murder in Miami. This Court must accept that issue of fact as settled and not allow any arguments that I was in Miami.” > > Would that work? It depends. The party seeking the benefit of the prior adjudication must show: “(1) the issue sought to be precluded is the same as that involved in the prior litigation; (2) the issue was actually litigated; (3) the issue was determined by a final and valid judgment; and (4) the determination was essential to the judgment.”\* The second and fourth ones are the important bits here. Being in Miami is not an essential element of murder, so you probably are not entitled to preclusive effect. > [@](#): > > In my scenario, Florida could argue that the prosecutor in California blew the pooch and he is entitled to take a shot at the Defendant. Although, do government agents have “due process” rights? Assuming you are talking about prosecution by two state governments, double jeopardy doesn’t attach anyway. \*Mason v. State, 206 S.W.3d 869, 881 (2005). The rule is basically the same everywhere since it is adopted from federal jurisprudence. ---
**Author:** ![robardin](https://avatars.discourse-cdn.com/v4/letter/r/43a26b/32.png) [@robardin](https://boards.straightdope.com/u/robardin)\ **Post date:** [October 23, 2012, 5:39pm UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/29 "2012-10-23T17:39:06Z")
In a similar vein, this is the backbone of the plot for the movie [Double Jeopardy](http://en.wikipedia.org/wiki/Double_Jeopardy_%28film%29). None of this is a spoiler, as the tagline was “Murder isn’t always a crime”, and the movie trailers sketched the story as a woman who’d been framed for murdering her (ex-)husband (who faked his own death) and was convicted, sentenced and served her time for the crime basically now had a free pass to hunt him down, 'cause she’d prepaid the penalty, so to speak, and couldn’t be convicted of murdering the same person a second time. On the other hand, that “information” was relayed by a prisoner doing time in a thriller movie, which does not exactly carry the weight of precedence. Meanwhile no less a legal figure than Alan Dershowitz weighed in on that plot detail: \*“There are two separate incidents,” Dershowitz claims. “She was falsely accused the first time. And maybe she can sue for that or get some credit. But then she committed an entirely separate, or at least planned to commit an entirely separate crime the second time. And there’s just no defense of double jeopardy for doing it the second time.” - ---
**Author:** ![JSexton](https://avatars.discourse-cdn.com/v4/letter/j/96bed5/32.png) [@JSexton](https://boards.straightdope.com/u/JSexton)\ **Post date:** [October 23, 2012, 8:37pm UTC](https://boards.straightdope.com/t/double-jeopardy-question/638378/30 "2012-10-23T20:37:36Z")
> [@friedo](#): > > There’s a classic _Law & Order_ episode where two guys are suspected of a murder, but each accuses the other of pulling the trigger. It’s obvious that both were involved and _one_ of them did it, but there’s no evidence that proves which one it was. So wily McCoy takes advantage of a defense motion to sever the trials, and advances a separate theory of the crime in each trial, convicting both of being the shooter at the same time, a physical impossibility. > > No idea how practical that scenario would be in real life, but I thought it was pretty clever. Tangent: Note that in many jurisdictions, committing a felony that directly leads to a homicide can result in you being charged with that homicide, even if you didn’t pull the trigger. If someone dies during a bank robbery, all the robbers can be charged with murder. [Previous page](https://boards.straightdope.com/t/double-jeopardy-question/638378.md?page=1)