# How is the double jeopardy "loophole" beneficial or acceptable? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [July 15, 2013, 10:54pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607 "2013-07-15T22:54:11Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [July 15, 2013, 10:54pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/1 "2013-07-15T22:54:11Z")
Okay, so we all know that the “double jeopardy” barred by the constitution refers to crimes, or violations of specific laws, not actions undertaken by an individual. Thus, a single action can consist of multiple crimes which can lead to multiple trials. For most people outside the legal, judicial, and/or political fields, this violates the double jeopardy principle of the constitution. So, how is the current system beneficial to society (as a whole), or what other reason is there for why hasn’t this been “fixed” (assuming there were a viable solution) yet? ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [July 15, 2013, 10:59pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/2 "2013-07-15T22:59:02Z")
If someone is a social pariah, you can’t keep putting them on trial until you get the results you want. But it happens. I know a guy who beat a case several years ago, a few days later the prosecutor found something else to charge him with. Rather than spend the money on another trial, he just pled guilty to the misdemeanor. He beat his case, it pissed off the prosecutor, so he found some minor charge to have him charged again. Zimmerman is arguably another example (I don’t know tons about law though, I assume double jeopardy doesn’t apply to state charges in one court, federal in another). The state court didn’t give the desired result, so they are now thinking of a federal case. I have no idea what the legal argument for/against DJ is. ---
**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:** [July 15, 2013, 11:14pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/3 "2013-07-15T23:14:29Z")
> [@dstarfire](#): > > Okay, so we all know that the “double jeopardy” barred by the constitution refers to crimes, or violations of specific laws, not actions undertaken by an individual. Thus, a single action can consist of multiple crimes which can lead to multiple trials. > > For most people outside the legal, judicial, and/or political fields, this violates the double jeopardy principle of the constitution. > > So, how is the current system beneficial to society (as a whole), or what other reason is there for why hasn’t this been “fixed” (assuming there were a viable solution) yet? The constitutional prohibition on double jeopardy prevents the government from abusing its already massive power to prosecute by repeatedly trying a person for a crime until it gets the verdict it desires. Despite the common complaints about the process, the criminal justice system is tilted in favor of the prosecution in most cases. The forbidding of retrying an acquitted defendant is an attempt to redress that inequity. Incidentally, my belief in the correctness of the DJ rule is why, though I think George Zimmerman should have been convicted, I also oppose his being retried on federal civil rights charges. Doing so is an attempt to get around the Constitution. (I’m okay with the Martins suing his ass into poverty, though.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 15, 2013, 11:55pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/4 "2013-07-15T23:55:37Z")
> [@dstarfire](#): > > Okay, so we all know that the “double jeopardy” barred by the constitution refers to crimes, or violations of specific laws, not actions undertaken by an individual. Thus, a single action can consist of multiple crimes which can lead to multiple trials. > > For most people outside the legal, judicial, and/or political fields, this violates the double jeopardy principle of the constitution. > > So, how is the current system beneficial to society (as a whole), or what other reason is there for why hasn’t this been “fixed” (assuming there were a viable solution) yet? Can you give a specific example of a single action that can lead to multiple crimes and multiple trials? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 16, 2013, 12:07am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/5 "2013-07-16T00:07:45Z")
One possibility that concerns me (a little) is if someone murders fifty eight people, and the DA tries them only for six of those murders. If the jury acquits, the DA could come right back with some other subset of the murders. He could keep this up for a damn long time. I understand that this doesn’t actually happen, but it could, and thus is worth being aware of. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [July 16, 2013, 12:23am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/6 "2013-07-16T00:23:32Z")
The logic is that the State of Florida has tried him for violations of Florida law. Florida can never bring another case against him for those violations of law. However, the family of Martin can bring a civil case against Zimmerman for wrongful death and/or civil rights violations. They too are allegedly wronged. The US federal government is another party entirely and Zimmerman arguably also violated Martin’s civil rights under federal law, which was not an issue. It too, gets one criminal crack at the defendant if a grand jury so indicts. In short, the US govt is not bound by what the hick govt of Florida does because they are two separate entities, which is undoubtedly true. There is a strong argument that the judge or the jury in the Zimmerman case screwed up, intentionally or otherwise. I’m not in their shoes, so I don’t really know. But the argument is that they engaged in jury nullification, the same as back during the civil rights movement in the South when jurors let off murderers of black men. Looks the same to me. I think the judge and jury screwed the pooch. I wouldn’t have a problem here with a federal prosecution. Suppose you rob a liquor store. The state can prosecute you for armed robbery. The feds can also criminally prosecute you for failing to declare and pay taxes on your ill gotten gains. ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [July 16, 2013, 12:36am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/7 "2013-07-16T00:36:08Z")
> [@Bricker](#): > > Can you give a specific example of a single action that can lead to multiple crimes and multiple trials? Trinopus cited a great example, exactly the sort of thing I had in mind when I started this thread. THe O.J. Simpson civil suit is a good real-world example. The civil court fined him for an action the criminal court said had not been proven to have happened. Also, let me clarify the original question as some folks seem to be understanding it backwards: I meant: why is the \*\*loophole \*\*_(of multiple crimes for the same action)_ beneficial or still in existence? attitude clarifier: I suspect there’s some valid reason for the current system (sneaky though it may seem), and want to understand that reasoning. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [July 16, 2013, 12:45am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/8 "2013-07-16T00:45:31Z")
In what sense would it be accurate for a person who had murdered fifty-eight people to protest that he was subject to multiple crimes for the same action if he was only tried for six murders in the first instance? Fifty-eight murders would ordinarily be at least fifty-eight actions, wouldn’t it? But to answer the general question, crimes are ultimately vehicles to codify harm. If a single action produces multiple harms, why is it a “loophole” that each of those harms may be redressable on its own merits? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [July 16, 2013, 12:51am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/9 "2013-07-16T00:51:43Z")
> [@Jimmy\_Chitwood](#): > > But to answer the general question, crimes are ultimately vehicles to codify harm. If a single action produces multiple harms, why is it a “loophole” that each of those harms may be redressable on its own merits? Whether or not it’s technically legal, there’s something that seems unfair about situations where the new charges seem clearly to be just another shot at a “justice” that those on the losing side didn’t get the first time. I don’t think a civil action is problematic at all, but for the Feds to go after Zimmerman, for example, is sour grapes, ISTM. It’s an abuse. I’m quite certain there would be no talk of federal charges if Zimmerman had been convicted. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [July 16, 2013, 12:56am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/10 "2013-07-16T00:56:31Z")
It seems to me that that’s an example of poor policy in the application of the law, though, which is something else from what I think the OP is wondering about. I mean, I think it’s unfair when a person gets charged with crimes X, Y, Z, F and M and offered a plea deal to M, even though the prosecution has to know it has very little chance at sustaining all those charges at trial. But that doesn’t mean that the general principle that the state _can_ press those charges is a “loophole.” It just means we all believe state agencies shouldn’t be dicks. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [July 16, 2013, 12:59am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/11 "2013-07-16T00:59:31Z")
I agree. I wouldn’t call it a loophole, I’d call it an abuse. ---
**Author:** ![DataX](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DataX](https://boards.straightdope.com/u/DataX)\ **Post date:** [July 16, 2013, 1:15am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/12 "2013-07-16T01:15:12Z")
It’s not a loophole anymore than the right to be secure in your house against unreasonable searches is a loophole. The prosecution gets one bite at the apple. If they got multiple bites - people would never be free. If you can’t convince a jury the first time around - too bad. Being tried civilly is a different matter. Not sure I feel the same way about fed/state prosecution - but generally civil rights violations are only against state actors - not sure how Zimmerman would qualify anyway. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [July 16, 2013, 1:49am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/13 "2013-07-16T01:49:21Z")
I am not a lawyer, but I think that the OP may have some misunderstandings of how the law actually works. Suppose the authorities suspect me of being a daring international art thief. They put me on trial for being the mastermind behind the [1990 heist at the Isabella Stewart Gardner Museum](http://en.wikipedia.org/wiki/Isabella_Stewart_Gardner_Museum#Art_theft_of_1990), but I hire a hotshot lawyer and the jury doesn’t buy it. (Or heck, maybe I’m innocent.) So then the authorities put me on trial for being responsible for the [1994 theft of _The Scream_](http://en.wikipedia.org/wiki/The_Scream#Thefts). Well, those are two totally different things. I could very well be innocent of the Isabella Stewart Gardner heist, but guilty of stealing _The Scream_, or it could be the other way around, or I could have been behind both crimes, or I could be innocent of either. (And of course there’s a difference between “objectively innocent of” and “there’s not enough evidence to convict beyond a reasonable doubt”.) But, if I understand the 1970 U.S. Supreme Court decision [_Ashe v. Swenson_](http://en.wikipedia.org/wiki/Ashe_v._Swenson) (and if the Wikipeida article is correct, complete, and up-to-date), what the authories can’t do is charge me with stealing (on or about March 18, 1990, from the Isabella Stewart Gardner Museum) _The Concert_ by Vermeer; then when that jury doesn’t buy it and I walk, try me all over again for stealing (on or about March 18, 1990, from the Isabella Stewart Gardner Museum) _A Lady and Gentleman in Black_ by Rembrandt; and when _that_ jury lets me off, move on to Jury #3 and my alleged theft (on or about March 18, 1990, from the Isabella Stewart Gardner Museum) of _The Storm on the Sea of Galilee_by Rembrandt; and so on and so forth. > [@Trinopus](#): > > One possibility that concerns me (a little) is if someone murders fifty eight people, and the DA tries them only for six of those murders. If the jury acquits, the DA could come right back with some other subset of the murders. He could keep this up for a damn long time. > > I understand that this doesn’t actually happen, but it could, and thus is worth being aware of. I think they can do this if they are actually fifty-eight separate murders. After all, just because I’m the Southside Strangler doesn’t mean I’ve killed every single murder victim in the world–some of them could be “copycat killings”, or just totally unrelated crimes. On the other hand, just because I didn’t kill every single murder victim in the world doesn’t mean I’m _not_ a serial killer either.\* However, if I’m accused of setting off a bomb that kills fifty-eight people, then the authorities can’t play the game described by **Trinopus**. (Again, if I’m understanding the law correctly. IANAL.) \*I am not a serial killer. Or even a suave and sophisticated daring international art thief. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 16, 2013, 1:53am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/14 "2013-07-16T01:53:43Z")
> [@Trinopus](#): > > One possibility that concerns me (a little) is if someone murders fifty eight people, and the DA tries them only for six of those murders. If the jury acquits, the DA could come right back with some other subset of the murders. He could keep this up for a damn long time. Maybe. And maybe not. It all depends on the way the prosecution’s theory of the case is laid out at the frost trial – and of course what the facts of the case are. If the jury acquittal on the first six murders is against a backdrop that leaves no doubt that the same guy did all fifty murders, and it’s clear that the jury didn’t find anything unique about those six, then he can’t be tried again. He’s protected by Double Jeopardy’s complicated cousin _collateral estoppel._ See Ashe v. Swenson. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 16, 2013, 2:00am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/15 "2013-07-16T02:00:21Z")
> [@Bricker](#): > > Maybe. And maybe not. > > It all depends on the way the prosecution’s theory of the case is laid out at the frost trial – and of course what the facts of the case are. > > If the jury acquittal on the first six murders is against a backdrop that leaves no doubt that the same guy did all fifty murders, and it’s clear that the jury didn’t find anything unique about those six, then he can’t be tried again. He’s protected by Double Jeopardy’s complicated cousin _collateral estoppel._ See Ashe v. Swenson. And I see I was Ninja’d, so I will save my honor by linking to [this post of mine from a few years ago that goes into more detail.](http://boards.straightdope.com/sdmb/showpost.php?p=14186605&postcount=22) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 16, 2013, 2:02am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/16 "2013-07-16T02:02:45Z")
> [@MEBuckner](#): > > But, if I understand the 1970 U.S. Supreme Court decision [_Ashe v. Swenson_](http://en.wikipedia.org/wiki/Ashe_v._Swenson) (and if the Wikipeida article is correct, complete, and up-to-date), what the authories can’t do is charge me with stealing (on or about March 18, 1990, from the Isabella Stewart Gardner Museum) _The Concert_ by Vermeer; then when that jury doesn’t buy it and I walk, try me all over again for stealing (on or about March 18, 1990, from the Isabella Stewart Gardner Museum) _A Lady and Gentleman in Black_ by Rembrandt; and when _that_ jury lets me off, move on to Jury #3 and my alleged theft (on or about March 18, 1990, from the Isabella Stewart Gardner Museum) of _The Storm on the Sea of Galilee_by Rembrandt; and so on and so forth. You got it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 16, 2013, 2:11am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/17 "2013-07-16T02:11:16Z")
> [@The\_Second\_Stone](#): > > There is a strong argument that the judge or the jury in the Zimmerman case screwed up, intentionally or otherwise. I’m not in their shoes, so I don’t really know. But the argument is that they engaged in jury nullification, the same as back during the civil rights movement in the South when jurors let off murderers of black men. Looks the same to me. I think the judge and jury screwed the pooch. I wouldn’t have a problem here with a federal prosecution. Numerous legal commentators followed the trial closely on a daily basis. They were virtually unanimous that the prosecution was not doing well and had ultimately failed to prove their case. There is NOT a strong argument that either the judge or the jury screwed up. There’s at least a halfway-decent argument that the prosecutors phoned it in, perhaps. Please cite one practicing criminal lawyer (not named Leatherman) who contends the jury nullified or the judge committed serious error. One. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [July 16, 2013, 3:03am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/18 "2013-07-16T03:03:05Z")
> [@dstarfire](#): > > THe O.J. Simpson civil suit is a good real-world example. The civil court fined him for an action the criminal court said had not been proven to have happened. Several things which are factually incorrect about this statement. This is not a violation of double jeopardy, as that only relates to prosecution and not to civil action. Simpson was not fined by the courts, rather _damages_ were awarded to the families of victim(s). Again, this was because it was a civil lawsuit and not a criminal one. The standards of proof are different. In a criminal case, the prosecution must prove beyond a reasonable doubt that the defendant is guilty. In a civil action, there is a “preponderance of evidence” or “clear and convincing evidence,” either of which is less than the standard of a reasonable doubt. I wasn’t in the States when that whole mess occurred, but it would very well be that there was enough evidence to meet the standard of proof for a civil action but not enough for a criminal conviction. > [@](#): > > I suspect there’s some valid reason for the current system (sneaky though it may seem), and want to understand that reasoning. The “current system” is too broad of a term and you are appear to be conflating too many different issues. The history of Federal civil rights laws and subsequent prosecution is primarily that crimes by whites again blacks in the 1950s and 60s weren’t getting prosecuted by white prosecutors and/or convicted by white jurors. Federal charges were successfully used in number of well known cases, including the infamous case of the three civil rights workers in the mid 60s. It was absolutely necessary at the time. Now, it’s probably a good thing to have and be able to use, but with more prudence. ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [July 16, 2013, 3:26am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/19 "2013-07-16T03:26:09Z")
Okay, thanks to Bricker and MEBuckner, the question has been answered, and the answer is: “It **HAS** been fixed, _to a certain extent_.” There’s still that civil vs. criminal distinction, where a person can be twice put in jeopardy of life, limb, or property for the same offense. But, the constitution only specifies life or limb, so it’s not technically unconstitutional. It’s the little distinctions like that that annoy people (unless it works in their favor, of course, ;)) and keep lawyers employed. Sure, there are other, clearly useful things lawyers do (e.g. helping normal people navigate our labyrinthine legal system), but who cares about any of that? 😛 ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [July 16, 2013, 3:34am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/20 "2013-07-16T03:34:50Z")
> [@Bricker](#): > > Numerous legal commentators followed the trial closely on a daily basis. They were virtually unanimous that the prosecution was not doing well and had ultimately failed to prove their case. > > There is NOT a strong argument that either the judge or the jury screwed up. > > There’s at least a halfway-decent argument that the prosecutors phoned it in, perhaps. > > Please cite one practicing criminal lawyer (not named Leatherman) who contends the jury nullified or the judge committed serious error. One. I’m not obliged to offer any criminal lawyer’s opinion. I share in the opinion of John Oliver of the Daily Show and millions of other Americans. The Florida system screwed this pooch quite badly. They guy stalked and confronted a minor, and then killed him. Where I’m from, that’s a crime. I’m from California. This was pure Florida racism. As witnessed by another Florida jury that convicted a black woman for firing a warning shot at her abusive husband. The judge gave her 20 years. Florida is a heavily racist state. [Next page](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607.md?page=2)