# 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:** 4
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [July 16, 2013, 7:03pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/61 "2013-07-16T19:03:24Z")
> [@The\_Second\_Stone](#): > > Or at all credible. It cannot be mentioned by the prosecution that he did not testify. His credibility in such a situation doesn’t even come into play. A juror with half a brain, which this one clearly did not have, should not have found someone who did not testify to be “credible”. But he did testify. For hours. In police interviews both at the police station and on-scene. All of which was introduced by the prosecution. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [July 16, 2013, 7:27pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/62 "2013-07-16T19:27:14Z")
> [@The\_Second\_Stone](#): > > Or at all credible. It cannot be mentioned by the prosecution that he did not testify. His credibility in such a situation doesn’t even come into play. A juror with half a brain, which this one clearly did not have, should not have found someone who did not testify to be “credible”. so - if you’re ever in Zimmerman’s situation - we can count on you to take the witness stand? ---
**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, 8:31pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/63 "2013-07-16T20:31:20Z")
> [@phreesh](#): > > I don’t want to speak for DStarfire, but I think what they’re getting at is something like a man who is accused of abducting, holding and killing a person. > > They state finds the body and charges him with murder. He is acquittted. > > So they charge him with rape. He is acquitted. > > So they charge him with kidnapping. He is acqutted. > > So they charge him with manslaughter. He is acquitted. > > Etc, etc. Double jeopardy may exist, but so many violent crimes have supporting crimes that the state can just keep charging someone until they get the verdict they want. If you look at the previous discussion of _Ashe v. Swenson_ and so forth, the state _can’t_ do that. All of the charges–kidnapping, rape, and murder (with manslaughter as a [lesser included charge](http://en.wikipedia.org/wiki/Lesser_included_charge) of murder)–would be addressed in one trial. If the jury decides that the defendant kidnapped the victim and killed her (but that rape wasn’t proved beyond a reasonable doubt), then he’s off the hook for that charge, and the state can’t hold another trial on the rape charge. Or maybe the jury decides that the victim wasn’t kidnapped or raped–she willingly went with the defendant back to his place and consented to have sex with him, but then later on they argued and he killed her in a sudden fit of passion–so the defendant is guilty of manslaughter, but the state can’t go back and re-try him for the kidnapping and rape charges with a new jury. And–still not a lawyer–but it would take a really odd set of facts and circumstances for there to be separate trials for the kidnapping, rape, and murder charges. (“Ladies and gentlement of the jury, the victim was kidnapped by someone–not the defendant there, some other guy–but then she escaped! But then someone else–still not the defendant there, this is perpetrator #2–raped her–but then she escaped again! And _then_ the defendant killed her.”) ---
**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, 9:27pm UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/64 "2013-07-16T21:27:56Z")
> [@The\_Second\_Stone](#): > > Do you have any reasonable doubt that Zimmerman killed Martin? Of course not. What you have doubt about is whether his intent was self-defense. I don’t. The context of his conduct leading up to firing the gun is “in my humble opinion” stalking and looking for a confrontation and getting one. > > I could not have voted to acquit based on the facts. Here are the instructions: [http://media.cmgdigital.com/shared/news/documents/2013/07/12/jury\_instructions\_1.pdf](http://media.cmgdigital.com/shared/news/documents/2013/07/12/jury_instructions_1.pdf) > > There really isn’t any room not to convict voluntary manslaughter. None at all. It would be a stretch to not convict for second degree murder. George Zimmerman initiated the confrontation, knowing he had a gun and intending to use it against someone he knew was unarmed by the time he pulled the gun. He stalked, confronted, combated and shot to death an unarmed minor. All of which is undisputed. What evidence, beyond a reasonable doubt, proves the element of ill-will, spite, or hatred? ---
**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 17, 2013, 12:00am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/65 "2013-07-17T00:00:47Z")
> [@Bricker](#): > > What evidence, beyond a reasonable doubt, proves the element of ill-will, spite, or hatred? Those aren’t elements of either manslaughter or murder per the instructions. Nor second degree murder. It does describe “imminently dangerous act”. Confronting people after following them around with an attitude as demonstrated in the Zimmerman call to the police more than meets that burden. Ill-will was demonstrated when Zimmerman was suspicious of Martin, got out the car with the intent to confront him and followed him around the neighborhood. That and shooting him. To death. ---
**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 17, 2013, 12:03am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/66 "2013-07-17T00:03:27Z")
> [@simster](#): > > so - if you’re ever in Zimmerman’s situation - we can count on you to take the witness stand? This is a non-sequitur. Zimmerman had the right not to take the witness stand, and so do all accused. From what little I know about criminal law (prior to the Patriot Act etc) I would strongly recommend refusing to talk without my lawyer present and not taking the stand. I have no objection in this case to the accused not taking the stand. I would have advised him to not take the stand. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 17, 2013, 12:30am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/67 "2013-07-17T00:30:27Z")
> [@The\_Second\_Stone](#): > > Those aren’t elements of either manslaughter or murder per the instructions. Nor second degree murder. It does describe “imminently dangerous act”. Confronting people after following them around with an attitude as demonstrated in the Zimmerman call to the police more than meets that burden. Ill-will was demonstrated when Zimmerman was suspicious of Martin, got out the car with the intent to confront him and followed him around the neighborhood. That and shooting him. To death. Yes, those are elements of murder in the instructions. [From the instructions:](http://www.flcourts18.org/PDF/Press_Releases/Zimmerman_Final_Jury_Instructions.pdf) > [@](#): > > To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt: > > 1. Trayvon Martin is dead. > 2. The death was caused by the criminal act of George Zimmerman. > 3. There was an unlawful killing of Trayvon Martin by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. > > An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose. > > An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that: > > 1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and > **2. is done from ill will, hatred, spite or an evil intent, and** > 2. is of such a nature that the act itself indicates an indifference to human life. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [July 17, 2013, 12:30am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/68 "2013-07-17T00:30:30Z")
> [@The\_Second\_Stone](#): > > Those aren’t elements of either manslaughter or murder per the instructions. Nor second degree murder. It does describe “imminently dangerous act”. Confronting people after following them around with an attitude as demonstrated in the Zimmerman call to the police more than meets that burden. Ill-will was demonstrated when Zimmerman was suspicious of Martin, got out the car with the intent to confront him and followed him around the neighborhood. That and shooting him. To death. So do you think you are smarter or just less racist than the jury? ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [July 17, 2013, 12:36am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/69 "2013-07-17T00:36:03Z")
> [@The\_Second\_Stone](#): > > This is a non-sequitur. Zimmerman had the right not to take the witness stand, and so do all accused. From what little I know about criminal law (prior to the Patriot Act etc) I would strongly recommend refusing to talk without my lawyer present and not taking the stand. I have no objection in this case to the accused not taking the stand. I would have advised him to not take the stand. How is it a non-sequitor? And yet you say he ‘can’t be credible’ because he didn’t? I think you’ve got yourself into a nice little corner there. Here, again , is your statement - (bolding mine) [QUOTE=The Second Stone] Or at all credible. It cannot be mentioned by the prosecution that he did not testify. His credibility in such a situation doesn’t even come into play.\*\* A juror with half a brain, which this one clearly did not have, should not have found someone who did not testify to be “credible”.\*\* [/QUOTE] So - the only way for a defendant to be credible is to take the stand - yet you just said that you would not -and that you would have advised him not to - seems a bit of a catch 22 there don’t you think? After all - all of Zimmerman’s ‘relevant’ comments were already on record and in front of the jury. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [July 17, 2013, 1:00am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/70 "2013-07-17T01:00:32Z")
No, the point is that “credibility” is only relevant to judging whether a particular person’s testimony can be relied upon. And the jury may judge a testifier’s credibility based only on what is shown or seen in court, such as his or her appearance, demeanour, gestures, expressions, emotions, confidence, etc. a jury may weigh the questions asked and the responses, the words and phrasing used, the logic and plausibility of the statements, how it compares to other evidence shown in court, and so on. If a person has not testified in court, that means he has not made any statements on the record in the view of the jury. The jury has not seen her being questioned. The jury has not observed Any of these things. So what, exactly, is this juror basing her opinion of Zimmerman’s credibility on? Certainly not evidence presented in court. And for what purpose is this credibility being inferred? Certainly not to weigh whether Zimmerman’s testimony is believable – _because he didn’t testify_. So not only has the jury not been given anything with which to judge his testimony, they also have nothing for which his credibility is relevant. So for this juror to say that she believed Zimmerman was credible and that his credibility influenced his acquittal is a doubly nonsensical statement. ---
**Author:** ![KSO](https://avatars.discourse-cdn.com/v4/letter/k/f07891/32.png) [@KSO](https://boards.straightdope.com/u/KSO)\ **Post date:** [July 17, 2013, 1:05am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/71 "2013-07-17T01:05:54Z")
> [@Acsenray](#): > > No, the point is that “credibility” is only relevant to judging whether a particular person’s testimony can be relied upon. > > And the jury may judge a testifier’s credibility based only on what is shown or seen in court, such as his or her appearance, demeanour, gestures, expressions, emotions, confidence, etc. a jury may weigh the questions asked and the responses, the words and phrasing used, the logic and plausibility of the statements, how it compares to other evidence shown in court, and so on. > > If a person has not testified in court, that means he has not made any statements on the record in the view of the jury. The jury has not seen her being questioned. The jury has not observed Any of these things. > > So what, exactly, is this juror basing her opinion of Zimmerman’s credibility on? Certainly not evidence presented in court. And for what purpose is this credibility being inferred? Certainly not to weigh whether Zimmerman’s testimony is believable – _because he didn’t testify_. > > So not only has the jury not been given anything with which to judge his testimony, they also have nothing for which his credibility is relevant. > > So for this juror to say that she believed Zimmerman was credible and that his credibility influenced his acquittal is a doubly nonsensical statement. I believe the prosecution entered the video of Zimmerman’s police interrogation into evidence, so the jury saw the video. The effect was testimony by Zimmerman without any cross-examination. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [July 17, 2013, 1:06am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/72 "2013-07-17T01:06:16Z")
But in this case, the jury saw Zimmerman’s walkthrough, his police interviews, and even his Sean Hannity interview. Those statements became part of the record as evidence introduced by the prosecution. They are the basis for weighing his credibility. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [July 17, 2013, 1:11am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/73 "2013-07-17T01:11:04Z")
> [@Acsenray](#): > > No, the point is that “credibility” is only relevant to judging whether a particular person’s testimony can be relied upon. > > And the jury may judge a testifier’s credibility based only on what is shown or seen in court, such as his or her appearance, demeanour, gestures, expressions, emotions, confidence, etc. a jury may weigh the questions asked and the responses, the words and phrasing used, the logic and plausibility of the statements, how it compares to other evidence shown in court, and so on. > > If a person has not testified in court, that means he has not made any statements on the record in the view of the jury. The jury has not seen her being questioned. The jury has not observed Any of these things. > > So what, exactly, is this juror basing her opinion of Zimmerman’s credibility on? Certainly not evidence presented in court. And for what purpose is this credibility being inferred? Certainly not to weigh whether Zimmerman’s testimony is believable – _because he didn’t testify_. > > So not only has the jury not been given anything with which to judge his testimony, they also have nothing for which his credibility is relevant. > > So for this juror to say that she believed Zimmerman was credible and that his credibility influenced his acquittal is a doubly nonsensical statement. They had his statements - his calls and interviews - they had the other witness statements that ‘corroborated’ his story as set forth in those statements - while they did not have his ‘direct testimoney’ - they did have the rest of his ‘statements’. She found those statements by him to be credible. Thats not much of a stretch overall - had he testified, she would have had another element to consider - and it may have changed his credibility in her eyes. Most cases - you do not have statements by the accused at all put on the record - this was a ‘different one’. Not sure why I’m arguing this - but if our ‘innocent until guilty’ infers some amount of ‘credibility’ on the accused until proven otherwise - and we don’t require the defendant to take the stand - then his not taking the stand has no affect on his ‘credibility’ - the evidence presented does - the evidence this juror saw (and heard) caused her to believe the defendant was credible and that she believed his story. (in short - what KSO and Human Action just said) ---
**Author:** ![phreesh](https://avatars.discourse-cdn.com/v4/letter/p/9fc29f/32.png) [@phreesh](https://boards.straightdope.com/u/phreesh)\ **Post date:** [July 17, 2013, 2:21am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/74 "2013-07-17T02:21:52Z")
[QUOTE=it would take a really odd set of facts and circumstances for there to be separate trials for the kidnapping, rape, and murder charges. (“Ladies and gentlement of the jury, the victim was kidnapped by someone–not the defendant there, some other guy–but then she escaped! But then someone else–still not the defendant there, this is perpetrator #2–raped her–but then she escaped again! And _then_ the defendant killed her.”)[/QUOTE] That’s helpful. Thanks. And that would truly be the bad day to end all bad days. ---
**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 17, 2013, 2:55am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/75 "2013-07-17T02:55:31Z")
> [@CarnalK](#): > > So do you think you are smarter or just less racist than the jury? Both, although it is a loaded false dichotomy question. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 17, 2013, 2:57am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/76 "2013-07-17T02:57:36Z")
> [@Bricker](#): > > What evidence, beyond a reasonable doubt, proves the element of ill-will, spite, or hatred? > [@The\_Second\_Stone](#): > > Those aren’t elements of either manslaughter or murder per the instructions. Nor second degree murder. Yes, they are of second degree murder. An act that is imminently dangerous to another and demonstrating a depraved mind must be done from ill will, hatred, spite or an evil intent. The jury instructions explicitly say this. Look on page 6, the second line that’s numbered “2.” > [@](#): > > It does describe “imminently dangerous act”. Confronting people after following them around with an attitude as demonstrated in the Zimmerman call to the police more than meets that burden. Ill-will was demonstrated when Zimmerman was suspicious of Martin, got out the car with the intent to confront him and followed him around the neighborhood. That and shooting him. To death. No. If you’re not even reading the damn instructions, why participate in the conversation? None of the examples you raise are legally sufficient. ---
**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 17, 2013, 2:59am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/77 "2013-07-17T02:59:32Z")
> [@simster](#): > > How is it a non-sequitor? And yet you say he ‘can’t be credible’ because he didn’t? I think you’ve got yourself into a nice little corner there. > > Here, again , is your statement - (bolding mine) > > So - the only way for a defendant to be credible is to take the stand - yet you just said that you would not -and that you would have advised him not to - seems a bit of a catch 22 there don’t you think? After all - all of Zimmerman’s ‘relevant’ comments were already on record and in front of the jury. I would not make any findings for the credibility of a criminal witness who did not testify. He wasn’t under oath for any of those interviews that were apparently relied on by the jury. Although the prosecution can possibly be criticized for not being careful enough about which ones they put into evidence and how, I don’t buy that the jurors are not responsible for letting the admitted killer go. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 17, 2013, 3:04am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/78 "2013-07-17T03:04:07Z")
> [@The\_Second\_Stone](#): > > I would not make any findings for the credibility of a criminal witness who did not testify. He wasn’t under oath for any of those interviews that were apparently relied on by the jury. Although the prosecution can possibly be criticized for not being careful enough about which ones they put into evidence and how, I don’t buy that the jurors are not responsible for letting the admitted killer go. But you also wouldn’t read and understand the jury instructions the court gave you, so why should your view of what you’d do as a juror be the slightest bit persuasive? ---
**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 17, 2013, 3:10am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/79 "2013-07-17T03:10:31Z")
> [@Bricker](#): > > Yes, they are of second degree murder. An act that is imminently dangerous to another and demonstrating a depraved mind must be done from ill will, hatred, spite or an evil intent. The jury instructions explicitly say this. Look on page 6, the second line that’s numbered “2.” > > No. > > If you’re not even reading the damn instructions, why participate in the conversation? > > None of the examples you raise are legally sufficient. I see them exactly as you have said. I interpret them differently. The fact that you quoted me quoting them shows that you are insincere in your accusation that I didn’t read them. I don’t read them as you do. This isn’t “great debates” where we take a side for the sake of argument. You’ve shared your opinion that you, as a juror, would find him guilty of manslaughter. It is legally sufficient that he stalked the man, got out the car, confronted him and shot him. If that isn’t your humble opinion, then it isn’t. It’s murder. And if I am on the same jury as you are on this, I will hold out for a conviction on both charges and hang the jury if there isn’t a conviction on at least manslaughter and at least try to get others to agree on murder. When you walk up to someone with a gun in your pocket intending to start an argument or confrontation with a stranger, and then shoot him, that is malice aforethought. I’d probably have the same opinion if Martin had a gun and it was a Western style quick draw. Going around starting arguments with a gun in your pocket is a recipe for murder. We just disagree on that. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [July 17, 2013, 3:32am UTC](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607/80 "2013-07-17T03:32:07Z")
> [@The\_Second\_Stone](#): > > Both, although it is a loaded false dichotomy question. Yeah. I meant to say “and/or”. [Previous page](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607.md?page=3) [Next page](https://boards.straightdope.com/t/how-is-the-double-jeopardy-loophole-beneficial-or-acceptable/663607.md?page=5)