# Double jeopardy **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [March 6, 2007, 3:46pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810 "2007-03-06T15:46:35Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Anaamika](https://avatars.discourse-cdn.com/v4/letter/a/5f9b8f/32.png) [@Anaamika](https://boards.straightdope.com/u/Anaamika)\ **Post date:** [March 7, 2007, 4:30am UTC](https://boards.straightdope.com/t/double-jeopardy/394810/21 "2007-03-07T04:30:23Z")
Fourthed or whatever. What a clear and coherent description not only of double jeopardy but of sovereignty as well. Thanks, Bricker. ---
**Author:** ![OtakuLoki](https://avatars.discourse-cdn.com/v4/letter/o/ac8455/32.png) [@OtakuLoki](https://boards.straightdope.com/u/OtakuLoki)\ **Post date:** [March 7, 2007, 4:58am UTC](https://boards.straightdope.com/t/double-jeopardy/394810/22 "2007-03-07T04:58:33Z")
**Bricker** , joining the chorus, here. To reply to **Elendil’s Heir** ’s post about confessions being sent to DAs when the defendant mistakenly thought that they had been acquitted, instead of simply being granted a new trial, I can’t recall the TX case mentioned, but does anyone remember the Virginia case that came up a few years ago with a kid who’d been convicted on a capitol murder case, had a judge overturn the conviction, order a new trial, and the kid responded by sending a taunting letter to the DA bragging how he’d stalked, raped and murdered the girl he’d been charged with killing. And being very shocked when his letter ended up in evidence for the new trial. I can’t find this exact story online, but I don’t think I could make it up… ---
**Author:** ![bbs2k](https://avatars.discourse-cdn.com/v4/letter/b/e495f1/32.png) [@bbs2k](https://boards.straightdope.com/u/bbs2k)\ **Post date:** [March 7, 2007, 5:02am UTC](https://boards.straightdope.com/t/double-jeopardy/394810/23 "2007-03-07T05:02:55Z")
Has anyone ever seen the movie Double Jeopardy? … … … Why is everyone looking at me like that? ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [March 7, 2007, 7:36am UTC](https://boards.straightdope.com/t/double-jeopardy/394810/24 "2007-03-07T07:36:50Z")
Great report. I’m curious if this part of the constitution is a response to a specific grievance against colonial Britain? Was there some history of troublemakers being kept incarcerated indefinitely by retrying them with “new” evidence? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [March 7, 2007, 8:41am UTC](https://boards.straightdope.com/t/double-jeopardy/394810/25 "2007-03-07T08:41:17Z")
Part I, Section 11, Paragraph h of the Canadian Charter of Rights and Freedoms spells out our equivalent: > [@](#): > > [Any person charged with an offence has the right] if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again ---
**Author:** ![MarcusF](https://avatars.discourse-cdn.com/v4/letter/m/67e7ee/32.png) [@MarcusF](https://boards.straightdope.com/u/MarcusF)\ **Post date:** [March 7, 2007, 1:11pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/26 "2007-03-07T13:11:17Z")
Worth noting that in England and Wales (but not Scotland) the law on double jeopardy was changed in 2005. The Court of Appeal can now quash an acquittal and order a retrial when “new and compelling” evidence is produced. The [first conviction under this law](http://news.bbc.co.uk/1/hi/england/5144722.stm) was of a man who was aquitted of killing his former girlfriend in 1989. He actually confessed to the crime while in prison for another offense but could only be charged with perjury for lying at his trial - for which he got six years. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [March 7, 2007, 3:45pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/27 "2007-03-07T15:45:57Z")
[QUOTE=outlierrn] Great report. I’m curious if this part of the constitution is a response to a specific grievance against colonial Britain? Was there some history of troublemakers being kept incarcerated indefinitely by retrying them with “new” evidence? [/QUOTE] Not really. There was already in the common law of England a well-established principle that a prior trial could be used as a pleaded defense to bar a subsequent prosecution. This was in place by at least 1676, according to the footnote #8 in [_Crist v. Bretz_, 437 U.S. 28 (1978)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=437&invol=28#f7). Blackstone talks about it in his Commentaries. I can’t put my hands on my English Constitutional History text right now, so I can’t follow up quickly. Maybe I’ll root around my boxes and see if I can’t find that book. Gawd, I hate this stupid apartment. :mad: By the way, another great job, Rick. 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 7, 2007, 4:04pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/28 "2007-03-07T16:04:57Z")
[QUOTE=OtakuLoki] **Bricker** , joining the chorus, here. To reply to **Elendil’s Heir** ’s post about confessions being sent to DAs when the defendant mistakenly thought that they had been acquitted, instead of simply being granted a new trial, I can’t recall the TX case mentioned, but does anyone remember the Virginia case that came up a few years ago with a kid who’d been convicted on a capitol murder case, had a judge overturn the conviction, order a new trial, and the kid responded by sending a taunting letter to the DA bragging how he’d stalked, raped and murdered the girl he’d been charged with killing. And being very shocked when his letter ended up in evidence for the new trial. I can’t find this exact story online, but I don’t think I could make it up… [/QUOTE] I recall this as well. Paul Warner Powell was tried in Virginia for capital murder after the killing of a teenager and the attempted murder and rape of her sister. In Virginia, the capital murder statute requires that certain special circumstances exist – your “run of the mill” murder cannot be eligible for the death penalty. However, if you committed the murder for hire, if you deliberately murder a child, if you kill a law enforcement officer – these are some examples of elements of capital murder, a charge that can garner the death penalty if convicted. Powell was charged with capital murder under one such factor: the Commonwealth alleged the murder was committed during the commission of a rape or attempted rape. But the Virginia Supreme Court overturned his conviction, holding that there was no evidence upon which the jury could have found that Powell committed the rape of one sister before or during the murder of the other; the testimony showed only that the second sister arrived home to find the body of the first and was then raped and left for dead. (She survived and testified against Powell, by the way). From jail, Powell sent a bragging, vile letter to the Commonwealth Attorney with the following opening paragraph: > [@](#): > > Since I have already been indicted on first degree murder and the Va. Supreme Court said that I can’t be charged with capital murder again, I figured I would tell you the rest of what happened on Jan. 29, 1999, to show you how stupid all of y’all mother fuckers are. He then goes on to describe the details of his murder of the first sister, including an admission that he tried to rape her and that her death occured because he stabbed her for resisting his attempt at rape. Unfortunately for Powell, his understanding of the court’s opinion and the Double Jeopardy clause was less than perfect. Since the Commonwealth never had any evidence he had tried to rape the first sister (“S”), they had charged him with murder of “S” during the rape of “K”. His new capital murder trial charged him with the murder of “S” during the attempted rape of “S” - a new crime, for double jeopardy purposes. Powell was convicted of capital murder on re-trial, and during the pendency of his appeals will undoubtedly have time to study the intricacies of Double Jeopardy analysis in more detail. ---
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [March 7, 2007, 4:32pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/29 "2007-03-07T16:32:05Z")
Seventeenth’d. Great job **Bricker**. I would also point out that all of the Staff Reports I have read done by attorneys have been excellent. ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [March 7, 2007, 6:31pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/30 "2007-03-07T18:31:22Z")
What if it was found that the original jury was tampered with in some way? ---
**Author:** ![Mops](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mops/32/16494_2.png) [@Mops](https://boards.straightdope.com/u/Mops)\ **Post date:** [March 7, 2007, 6:32pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/31 "2007-03-07T18:32:03Z")
As a matter of interest, what was the thinking behing interpreting “put in jeopardy of life or limb” (which I’d naïvely read to refer to capital or physical punishment) as referring to _any_ kind of punishment? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [March 7, 2007, 6:36pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/32 "2007-03-07T18:36:48Z")
> [@](#): > > That is, if you’re acquitted of murder in the shotgun death of your unfaithful spouse, you can’t be hauled in for a new trial for assault with a deadly weapon, or even for discharging a firearm inside city limits. OK, so what about this hypothetical? Multiple witnesses see and hear, through the uncurtained window of my house, me shooting my wife and her collapsing to the ground. The next morning, I head out to the marina and go out on my boat, and one of the marina workers noticed I was lugging a big, awkward bag onto the boat. The police get a warrent, and find bloodstains in my living room, but no sign of my wife’s whereabouts. I’m arrested, and tried for murder. Well, on the last day of the trial, my wife turns up, seriously wounded, but alive and breathing. Clearly, I’m not guilty of the crime of murdering my wife. The facts do still support assault, attempted murder, and probably a few other things, but I wasn’t charged with any of those, since they’re lesser included offenses of murder. The court can’t find me guilty of murder, since she lived, but if they find me not guilty, then double jeopardy would protect me from prosecution for those other offenses, too. I presume that the state has some recourse in this situation (other than charging me for littering for the improper disposal of my bag of old bowling balls); what would it be? Or, to throw yet another monkey wrench into it: Suppose that the court does find me not guilty of the murder, but then, a few days after the trial, my wife finally succumbs to her wounds and dies? What happens then? ---
**Author:** ![Fiver](https://avatars.discourse-cdn.com/v4/letter/f/e274bd/32.png) [@Fiver](https://boards.straightdope.com/u/Fiver)\ **Post date:** [March 7, 2007, 6:48pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/33 "2007-03-07T18:48:07Z")
[QUOTE=Chronos] The court can’t find me guilty of murder, since she lived, but if they find me not guilty, then double jeopardy would protect me from prosecution for those other offenses, too. [/quote] IANAL, but I don’t think you’d be found _either_ guilty or not guilty. Instead, the case would be dismissed and the prosecutor would prepare new charges against you. Double jeopardy would not apply. If your wife turned up _after_ your “not guilty” verdict, your conviction would be overturned or vacated. And then you’d be tried for those lesser charges. You’re only safe, as a double jeopardy matter, from those lesser included offenses within the offense of murder, **if** a murder was committed. If it’s determined that no murder was committed, those “lesser included offenses” are no longer “included” in any greater crime and thus become the biggest reason for you to be tried, so again it’s not a double jeopardy situation. > [@](#): > > Or, to throw yet another monkey wrench into it: Suppose that the court does find me not guilty of the murder, but then, a few days after the trial, my wife finally succumbs to her wounds and dies? What happens then? In that case, there’s a new specification: you were not guilty of the murder that happened on the boat, but you _are_ guilty of the murder that occurred in a hospital ICU days or weeks after the incident on the boat. New details mean a new charge; double jeopardy again wouldn’t apply. I hope I got all this right. I think I did. Again, IANAL, but I was a legal officer on my ship in the Navy, so I’ve learned a lot of this stuff. ---
**Author:** ![Fiver](https://avatars.discourse-cdn.com/v4/letter/f/e274bd/32.png) [@Fiver](https://boards.straightdope.com/u/Fiver)\ **Post date:** [March 7, 2007, 7:14pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/34 "2007-03-07T19:14:57Z")
**Bricker** , you said we have dual sovereigns, but isn’t it sometimes three? If I were a member of the armed forces on active duty and I committed a crime on the grounds of Camp Pendleton (for example), I could be charged for that crime under the Uniform Code of Military Justice, the laws of California, and federal law. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 7, 2007, 7:26pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/35 "2007-03-07T19:26:22Z")
[QUOTE=Fiver] **Bricker** , you said we have dual sovereigns, but isn’t it sometimes three? If I were a member of the armed forces on active duty and I committed a crime on the grounds of Camp Pendleton (for example), I could be charged for that crime under the Uniform Code of Military Justice, the laws of California, and federal law. [/QUOTE] Depends on the type of proceeding and the penalty in the military proceeding. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/3rd/971539p.html](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/3rd/971539p.html) The military isn’t a separate sovereign, but not all service-related penalties are punishments. \*Id. \*; [http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=206&invol=333](http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=206&invol=333) OTOH, there can be more than one state involved [http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=474&invol=82](http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=474&invol=82) , or in some cases, an indian tribe [http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=435&invol=313](http://www.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=435&invol=313) , or a foreign country, so there certainly can be more than two. Also, some states have abrogated the separate sovereign doctrine as a matter of state law. [http://www.tvw.org/modules/opinions/649596\_o.htm](http://www.tvw.org/modules/opinions/649596_o.htm) In those jurisdictions, a federal proceeding can bar a later state proceeding. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 7, 2007, 7:43pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/36 "2007-03-07T19:43:51Z")
[QUOTE=Chronos] The facts do still support assault, attempted murder, and probably a few other things, but I wasn’t charged with any of those, since they’re lesser included offenses of murder. [/QUOTE] To some extent this is covered by the rules about lesser included offenses. > [@](#): > > The court can’t find me guilty of murder, since she lived, but if they find me not guilty, then double jeopardy would protect me from prosecution for those other offenses, too. No. No. No. The result of the trial is irrelevant. Jeopardy attaches when the jury is empaneled and sworn. [Roger CRIST, as Warden of the Montana State Penitentiary, Deer Lodge, Montana, et al., Appellants, v. L. R. BRETZ et al. | Supreme Court | US Law | LII / Legal Information Institute](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0437_0028_ZS.html) > [@](#): > > Or, to throw yet another monkey wrench into it: Suppose that the court does find me not guilty of the murder, but then, a few days after the trial, my wife finally succumbs to her wounds and dies? What happens then? I’d say a subsequent prosecution is forbidden. If, OTOH, you’d been prosecuted for a lesser crime before, you might be subject to another prosecution. _See_, [THE PEOPLE &C. v. RONALD LATHAM](http://www.law.cornell.edu/nyctap/I94_0005.htm); [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/509/688.html](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/509/688.html) ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [March 7, 2007, 8:20pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/37 "2007-03-07T20:20:51Z")
[QUOTE=Bricker] I recall this as well. Paul Warner Powell was tried in Virginia … [he ultimately] was convicted of capital murder on re-trial, and during the pendency of his appeals will undoubtedly have time to study the intricacies of Double Jeopardy analysis in more detail. [/QUOTE] Yes, that’s the case I was thinking of. Virginia, not Texas, I guess. I remember the _ABA Journal_ had a brief article on it. What a stoopid idjit. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 7, 2007, 9:30pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/38 "2007-03-07T21:30:45Z")
[QUOTE=Chronos] OK, so what about this hypothetical? Multiple witnesses see and hear, through the uncurtained window of my house, me shooting my wife and her collapsing to the ground. The next morning, I head out to the marina and go out on my boat, and one of the marina workers noticed I was lugging a big, awkward bag onto the boat. The police get a warrent, and find bloodstains in my living room, but no sign of my wife’s whereabouts. I’m arrested, and tried for murder. Well, on the last day of the trial, my wife turns up, seriously wounded, but alive and breathing. Clearly, I’m not guilty of the crime of murdering my wife. The facts do still support assault, attempted murder, and probably a few other things, but I wasn’t charged with any of those, since they’re lesser included offenses of murder. The court can’t find me guilty of murder, since she lived, but if they find me not guilty, then double jeopardy would protect me from prosecution for those other offenses, too. I presume that the state has some recourse in this situation (other than charging me for littering for the improper disposal of my bag of old bowling balls); what would it be? [/quote] The state has two basic options here. And you, in response, have two options as well. The state can move to amend the indictment against you to add the lesser-includeds. You can object to that amendment. Typically, you would have to show that you were prejudiced in your ability to defend yourself – that you prepared for the original charges and the new charges are different enough that your defense won’t work. If, for example, your entire theory of the case was “mistaken identity” you might not be able to make that claim; if you were all set to srgue to the jury that yeah, sure, you beat the crap out of your wife but she’s still alive, then your argument will hold more water. If the judge does not permit the state to amend the indictment, then the state may ask for a mistrial. You may object to that request too. If the motion is granted over your objection, you might raise double jeopardy as a defense to a retrial. The state may say that although jeopardy attached to your first trial, the mistrial was a case of manifest necessity, and thus does not bar a second trial. That would be for the trial judge to sort out. If he dismisses your motion, you have to stand trial again for the lesser charges, and can certainly include in your appeal the claim that his dismissal was in error. > [@](#): > > Or, to throw yet another monkey wrench into it: Suppose that the court does find me not guilty of the murder, but then, a few days after the trial, my wife finally succumbs to her wounds and dies? What happens then? Now you’re on safer ground. The acquittal on one charge operates as an an acquittal on each and every element of the charge in question, which basically means you’re safe from prosecution on any lesser-included offense. This brings into play the principle of _collateral estoppal_, or “issue preclusion.” Explaining collateral estoppel can make the eyes of otherwise brave men run with tears, but at it’s heart, the principle means that once an issue is fully and finally litigated, it cannot be re-litigated in subsequent proceedings. To re-prosecute you, the state would have to prove facts that were resolved against it by the acquittal in your first trial. As a general principle, you’re likely safe from re-prosecution for that crime, or any lesser-included offenses of that crime, by that state. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 7, 2007, 9:53pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/39 "2007-03-07T21:53:43Z")
[QUOTE=Bricker] Now you’re on safer ground. The acquittal on one charge operates as an an acquittal on each and every element of the charge in question, which basically means you’re safe from prosecution on any lesser-included offense. This brings into play the principle of _collateral estoppal_, or “issue preclusion.” Explaining collateral estoppel can make the eyes of otherwise brave men run with tears, but at it’s heart, the principle means that once an issue is fully and finally litigated, it cannot be re-litigated in subsequent proceedings. To re-prosecute you, the state would have to prove facts that were resolved against it by the acquittal in your first trial. As a general principle, you’re likely safe from re-prosecution for that crime, or any lesser-included offenses of that crime, by that state. [/QUOTE] Ahh crap. I forgot to evaluate the collateral estoppel implications of the acquittal. Here’s a previous thread where we beat collateral estoppel pretty much to death. [http://boards.straightdope.com/sdmb/showthread.php?t=328175&page=2&pp=40](http://boards.straightdope.com/sdmb/showthread.php?t=328175&page=2&pp=40) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 7, 2007, 10:02pm UTC](https://boards.straightdope.com/t/double-jeopardy/394810/40 "2007-03-07T22:02:29Z")
[QUOTE=Gfactor] If, OTOH, you’d been prosecuted for a lesser crime before, you might be subject to another prosecution. _See_, [THE PEOPLE &C. v. RONALD LATHAM](http://www.law.cornell.edu/nyctap/I94_0005.htm); [/QUOTE] Link should be: [THE PEOPLE &C. v. RONALD LATHAM](http://www.law.cornell.edu/nyctap/I94_0005.htm) Here’s a big section of the opinion: > [@](#): > > Under the Federal Constitution, double jeopardy arises only upon separate prosecutions arising out of the same “offense” (US Const, 6th, 14th Amends; Blockburger v United States, 284 US 299). Dissatisfied with such limited protection, the Legislature in 1970 adopted a statute (CPL 40.20 [L 1970, ch 996]) providing comprehensive protection against separate prosecutions for “two offenses based upon the same act or criminal transaction” (see, Matter of Abraham v Justices, 37 NY2d 560, 565). The statute contains six exemptions (CPL 40.20[2][a]-[f]), describing six types of successive prosecutions that receive no statutory protection, and are limited only by constitutional double jeopardy protections. Thus, our analysis begins with the statute. We need consider defendant’s constitutional claim only if the separate prosecution for murder is exempt from statutory double jeopardy protection. > > Here, as in People v Rivera (60 NY2d 110), the People claim that the murder indictment is within the “delayed death” exemption (CPL 40.20[2][d]), which authorizes a second prosecution when “[o]ne of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after a prosecution for the assault or other nonhomicide offense.” This “delayed death” exemption may be traced to the “sound policy reasons” underlying Diaz v United States (223 US 442), including the need for prompt adjudication (Rivera, 60 NY 110, 114). Particularly in an era where medical advances can prolong the life of a critically injured victim, a prosecution must proceed on the basis of the victim’s present condition. [n 1] Where death follows, however, it is also in society’s interest that a homicide be redressed. > > Because the “delayed death” exemption does work an exception to the statutory double jeopardy prohibition, in Rivera we narrowly construed its applicability to cases in which the offense underlying the initial prosecution was “consistent with physical injury” and from which “physical injury resulted.” Under the facts of this case, attempted murder is such an offense. [n 2] Moreover, while the trial court defined a “homicide” offense by looking to whether there was a reasonable possibility, at the time of plea, that the victim would die, the Penal Law defines homicide as conduct which “causes the death of a person” (Penal Law § 125.00). Attempted murder–which fails to cause the death of a person–is thus by definition a “nonhomicide” offense. > > Statutory double jeopardy protection is therefore not available to defendant. Nor, under the facts of this case, would a separate prosecution for homicide violate the State or Federal Constitution (NY Const, Art I, § 6; US Const, VIth, XIVth Amends). > > Defendant’s constitutional claims are based entirely on Grady v Corbin (495 US 508), in which the Supreme Court held that a subsequent prosecution would be barred by the double jeopardy clause if it required the government to prove, as an essential element of the new offense, “conduct” that constituted the former offense. Recently, however, the court overruled the Grady “same conduct” test in United States v Dixon (\_\_\_ US \_\_\_, 113 S Ct 2849), reinstating the test of Blockburger v United States (284 US 299) as the measure of whether a successive prosecution violated the Federal constitutional prohibition against double jeopardy. [n 3] > > Under Blockburger, two distinct statutory provisions do not constitute the “same offense” for double jeopardy purposes if each provision requires proof of a fact which the other does not (284 US 299, 304). In the case of delayed death, Blockburger does not bar a second prosecution for homicide following conviction of assault or another nonhomicide offense because the element of death distinguishes the two offenses (Rivera, 10 NY2d 100, 116). Defendant does not claim that he is entitled to greater protection under the State constitutional double jeopardy prohibition (NY Const, Art I, § 6). We therefore reject both his State and Federal constitutional claims. > > Neither defendant’s asserted belief that his plea would end all criminal exposure stemming from his conduct nor the fact that Shambeau’s death was reasonably foreseeable at the time of plea can prevent as a matter of double jeopardy a subsequent prosecution for murder in the second degree. New York does not adhere to a subjective double jeopardy rule. While defendant points to other jurisdictions which, in similar situations, have barred subsequent prosecution for homicide, those decisions have not rested on double jeopardy grounds. In the cases cited by defendant, it was established that at the time of plea both the defendant and the prosecution intended the plea to close the matter forever. Subsequent prosecution therefore breached promises implied in the original plea agreement, mandating specific performance of the original plea agreement (see, e.g., Ohio v Carpenter, 68 Ohio St 3d 59, 623 NE2d 66; Connecticut v Nelson, 23 Conn App 215, 579 A2d 1104; New Jersey v Thomas, 61 NJ 314, 294 A2d 57). That is not the case before us. > > * * * > > 1. In any event, the Court in Grady explicitly noted that an exception to this prohibition would exist where the State is unable to proceed on the more serious charge at the outset “‘because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.’” (Grady, 495 US 508, 516, n 7, quoting Brown v Ohio, 431 US 161, 169, n 7.) [Previous page](https://boards.straightdope.com/t/double-jeopardy/394810.md?page=1) [Next page](https://boards.straightdope.com/t/double-jeopardy/394810.md?page=3)