# Double jeopardy **URL:** \ **Category:** Great Debates\ **Created:** [September 16, 2008, 8:32pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892 "2008-09-16T20:32:14Z")\ **Posts on this page:** 15\ **Page:** 1
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [September 16, 2008, 8:32pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/1 "2008-09-16T20:32:14Z")
In another thread there was an argument being made that an American cannot be tried by another country for a crime if he was tried by the US and found innocent. This is, obviously, nonsense just the same as American courts would not consider it double jeopardy to try someone who has been acquitted abroad. Correct? > [@Spain issues arrest warrant for 3 US soldiers](https://boards.straightdope.com/t/spain-issues-arrest-warrant-for-3-us-soldiers/327028/87): > > The same act cannot be tried twice by the same sovereign (even claiming a different law) but another sovereign is free to try the same act again. It is not a matter of different law but a matter of different sovereign. You can find it easily if you search threads where double jeopardy has been discussed and I am sure our expert lawyers can clarify this > [@Spain issues arrest warrant for 3 US soldiers](https://boards.straightdope.com/t/spain-issues-arrest-warrant-for-3-us-soldiers/327028/85): > > I would certainly like to see a case of double jeopardy in American law. Americans cannot be tried twice for the same offense. Same same for most people in the world. > [@Spain issues arrest warrant for 3 US soldiers](https://boards.straightdope.com/t/spain-issues-arrest-warrant-for-3-us-soldiers/327028/93): > > Red Fury: Please pay attention…to the Constitution of the United States. It clearly says ([Amendment V](http://www.law.cornell.edu/constitution/constitution.billofrights.html)) > > That’s a nifty word there, isn’t it, offense? Clearly, the governing law of the United States permits separate trials for different offenses. > > BTW, would you happen to have any real and valid cites for the separate states which compose the United States being sovereign entities themselves (I mean cites other than political rhetoric at party conventions and that line from _Hawaii 5-0_)? I believe **RedFury** is correct and **Monty** is mistaken. I believe a person in the USA can be tried for the same act by the Feds and by a State without infringing the double jeopardy clause. In other words, for instance, Police officer A beats the crap out of citizen B for no reason. A is tried by the State of C and is found not guilty. This bars any further prosecution for that same act by C. But the Feds can still bring charges based on the same act by C infringing federal statute X. Noit to mention that a trial conducted in a foreign country would be even less of a consideration regarding double jeopardy. Am I right? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [September 16, 2008, 8:40pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/2 "2008-09-16T20:40:28Z")
> [@sailor](#): > > and **Monty** is mistaken. I believe a person in the USA can be tried for the same act by the Feds and by a State without infringing the double jeopardy clause. You’re right. It’s called the seperate sovereigns exception. For instance, the four policemen who beat Rodney King were first tried in California for excessive force, and then, after that trial, were tried in federal court for the violation of King’s civil rights, for the same act they had been tried in state court. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [September 16, 2008, 9:04pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/3 "2008-09-16T21:04:32Z")
Furthermore, a soldier (or sailor, airman or marine) can be tried by a civilian court and then tried again under the UCMJ. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [September 16, 2008, 9:25pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/4 "2008-09-16T21:25:42Z")
**Captain Amazing** , thanks for your input. That is the exact example I had in mind. > [@DrCube](#): > > Furthermore, a soldier (or sailor, airman or marine) can be tried by a civilian court and then tried again under the UCMJ. Good one. I had not thought of that possibility. So we have the (admittedly remote) possibility that a person could be tried for the same act by one or more foreign countries, by one or more states, by the feds and by the military and yet not trigger the double jeopardy clause. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 16, 2008, 9:37pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/5 "2008-09-16T21:37:37Z")
> [@sailor](#): > > So we have the (admittedly remote) possibility that a person could be tried for the same act by one or more foreign countries, by one or more states, by the feds and by the military and yet not trigger the double jeopardy clause. Yep…a simple way to think of it (for me at least, not sure it is fair to couch it this way) is they are actually being prosecuted for breaking different laws. It is not that you cannot be prosecuted for the same crime more than once but that you cannot be prosecuted for breaking the same law more than once for a given act. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [September 16, 2008, 9:37pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/6 "2008-09-16T21:37:40Z")
But getting the US to extradite might be an insurmountable hurdle. Let’s say Rumsfeldt is tried for falsifying info, and getting the Congress to authorise the use of force. Let’s stipulate that he is found innocent. Then the UK demands that we turn him over to them, on charges that amount to pretty much the same thing (the UK acted on Rummy’s bogus info, UK soldiers get killed in Iraq). I wonder how that would work out, but I am hedging my bets on a polite “no” to extradition. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 16, 2008, 9:48pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/7 "2008-09-16T21:48:56Z")
State and federal prosecutions for the same acts do not generally violate the double jeopardy clause. Nor do foreign prosecutions. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [September 16, 2008, 9:58pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/8 "2008-09-16T21:58:06Z")
> [@Whack-a-Mole](#): > > Yep…a simple way to think of it (for me at least, not sure it is fair to couch it this way) is they are actually being prosecuted for breaking different laws. It is not that you cannot be prosecuted for the same crime more than once but that you cannot be prosecuted for breaking the same law more than once for a given act. But if one sovereign prosecutes someone for breaking law K by doing T and that person is acquitted I believe the same sovereign cannot now try again to prosecute him for breaking law Y by the same act. Different laws but now double jeopardy does apply. Right? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 16, 2008, 10:06pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/9 "2008-09-16T22:06:59Z")
> [@sailor](#): > > But if one sovereign prosecutes someone for breaking law K by doing T and that person is acquitted I believe the same sovereign cannot now try again to prosecute him for breaking law Y by the same act. Different laws but now double jeopardy does apply. Right? Wrong, if I understand you. Although the prosecution might be prevented by another principle known as _collateral estoppel._ But two laws are different for double jeopardy purposes only if each includes an element that the other does not. So if Law K and Law Y each include elements that the other doesn’t, then a prosecution and acquittal for one doesn’t create a DJ bar for a subsequent reprosecution. If Law K and Law Y have exactly the same elements, or if ones has all the elements of the other, then you’re right. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [September 16, 2008, 10:12pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/10 "2008-09-16T22:12:06Z")
> [@Bricker](#): > > Wrong, if I understand you. > > Although the prosecution might be prevented by another principle known as _collateral estoppel._ > > But two laws are different for double jeopardy purposes only if each includes an element that the other does not. > > So if Law K and Law Y each include elements that the other doesn’t, then a prosecution and acquittal for one doesn’t create a DJ bar for a subsequent reprosecution. > > If Law K and Law Y have exactly the same elements, or if ones has all the elements of the other, then you’re right. Oh, Ok, thanks. It is a bit more complex than I thought but I see the double jeopardy protection is even more restricted than even I thought because I was under the impression that it barred any further prosecution by the same sovereign under _any_ law and now I learn that is not the case. Interesting. Thanks. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 16, 2008, 10:14pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/11 "2008-09-16T22:14:06Z")
> [@sailor](#): > > Oh, Ok, thanks. It is a bit more complex than I thought but I see the double jeopardy protection is even more restricted than even I thought because I was under the impression that it barred any further prosecution by the same sovereign under _any_ law and now I learn that is not the case. Interesting. Thanks. No problem. If you’d fancy a headache, I can try to delve into _Ashe v. Swenson_, the seminal case for applying collateral estoppel to the world of criminal law… 🙂 ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [September 16, 2008, 10:22pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/12 "2008-09-16T22:22:56Z")
> [@Bricker](#): > > No problem. > > If you’d fancy a headache, I can try to delve into _Ashe v. Swenson_, the seminal case for applying collateral estoppel to the world of criminal law… 🙂 The problem is I ask a simple question and it just opens up a bunch of more complex questions. I had to look up [collateral estoppel](http://en.wikipedia.org/wiki/Collateral_estoppel). It will take me a while to try to digest that and it may be over my head anyway. I do not expect you to give me a law course here but thanks for pointing me in the right direction. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 16, 2008, 10:28pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/13 "2008-09-16T22:28:06Z")
The case that I always trot out to to illustrate dual sovereigns and double jeopardy is [Heath v. Alabama](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=474&invol=82), 474 U.S. 82 (1985). Heath hired two men to kill his wife, who was nine months pregnant; they kidnapped her in Alabama and killed her in Georgia. He pleaded guilty in Georgia in exchange for a life sentence. Alabama susequently indicted him for murder during a kidnapping, and he received the death penalty. The U.S. Supreme Court ruled that each state had the right to criminalize and exercise jurisdiction over Heath’s actions, and it didn’t violate double jeopardy for each to prosecute him for a single course of conduct. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [September 16, 2008, 10:34pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/14 "2008-09-16T22:34:46Z")
In reading about _collateral estoppel_ I find it interesting that the double jeopardy rule is not, as I had thought, something which exists isolated with the sole purpose of protecting persons against abuse by the authorities but that it exists in a larger frame of rules which inspire it and serve to interpret it. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [September 16, 2008, 10:38pm UTC](https://boards.straightdope.com/t/double-jeopardy/463892/15 "2008-09-16T22:38:58Z")
> [@pravnik](#): > > The case that I always trot out to to illustrate dual sovereigns and double jeopardy is [Heath v. Alabama](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=474&invol=82), 474 U.S. 82 (1985). Heath hired two men to kill his wife, who was nine months pregnant; they kidnapped her in Alabama and killed her in Georgia. He pleaded guilty in Georgia in exchange for a life sentence. Alabama susequently indicted him for murder during a kidnapping, and he received the death penalty. The U.S. Supreme Court ruled that each state had the right to criminalize and exercise jurisdiction over Heath’s actions, and it didn’t violate double jeopardy for each to prosecute him for a single course of conduct. Very good case in that the ruling is very short and clear for non-lawyers. Some rulings are so intricate as to be unintelligible to lay persons but this one is very simple: > [@](#): > > 1. Under the dual sovereignty doctrine, successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause of the Fifth Amendment, and, hence, Alabama was not barred from trying petitioner. Pp. 87-93. > > (a) The dual sovereignty doctrine provides that when a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “offences” for double jeopardy purposes. In applying the doctrine, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the prosecuting entities’ powers to undertake criminal prosecutions derive from separate and independent sources. It has been uniformly held that the States are separate sovereigns with respect to the Federal Government because each State’s power to prosecute derives from its inherent sovereignty, preserved to it by the Tenth Amendment, and not from the Federal Government. Given the distinct sources of their powers to try a defendant, the States are no less sovereign with respect to each other than they are with respect to the Federal Government. Pp. 87-91. > > (b) The application of the dual sovereignty principle cannot be restricted to cases in which two prosecuting sovereigns can demonstrate that allowing only one sovereign to exercise jurisdiction over the [474 U.S. 82, 83] defendant will interfere with the second sovereign’s unvindicated “interests.” If the prosecuting entities are separate sovereigns, the circumstances of the case and the specific “interests” of each are irrelevant. Pp. 91-92. > > (c) The suggestion that the dual sovereignty doctrine be overruled and replaced with a balancing of interests approach is rejected. The Court’s rationale for the doctrine is not a fiction that can be disregarded in difficult cases; it finds weighty support in the historical understanding and political realities of the States’ role in the federal system and in the Double Jeopardy Clause itself. Pp. 92-93. > > 455 So.2d 905, affirmed. I wish more rulings were as easy to understand.