Franklin Pierce apparently chose to do so and he reportedly affirmed, rather than swore, to execute the Office of President.
(The reason I use “apparently” and “reportedly” is because there are written reports that Hoover and Nixon also affirmed their oaths. But film of their inaugurations show that both men said “I swear” not “I affirm”. So reports of Pierce’s affirmation might also be wrong but there are no recordings to prove what he said.)
I’m sure it happens all the time for crimes that don’t get much attention. I know that one of my clients, following acquittal on drug charges, most certainly bragged to his friends that won at trial despite being guilty. He didn’t testify at that trial, and the Prosecution simply failed to prove the crime beyond a reasonable doubt.
It’s right there in the Sermon on the Mount:
That’s the “exculpatory no” doctrine. Recently rejected in Brogan v. United States.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7007&context=jclc
This is another reason why you should never talk to the Police- if you lie about anything, it’s a felony, even if the crime is only a minor misdemeanor.
Mind you, pleading “Not Guilty” (even if you are) is not perjury.
A brilliantly written article by some hard-working clerk in the SDStaff Office, whose name escapes me:
What happens if you confess to a crime after being found not guilty?
Modesty forbade you, eh? 
Good article.
[nitpick]
That is indeed an excellent article and I learned much. That said, there is a mistake in the second paragraph, which should read, “This is known as…” Also, while I don’t believe it’s technically wrong, I would suggest removing one of the instances of “again” in the last sentence of the penultimate paragraph.
So, almost brilliantly written; not brilliantly edited.
Good find.
The Harry Aleman case is the only one I remember. Aleman was never in jeopardy, so jeopardy never applied.
Finally, it’s worth observing that in order for double jeopardy to apply, you must have first genuinely been in jeopardy. Cook County, Illinois resident Harry Aleman learned this lesson after successfully bribing Judge Frank Wilson to acquit him on murder charges in 1977. After the bribery came to light, Aleman was re-tried on the original murder charges. He raised a double jeopardy defense to this second trial, but the courts ruled that his first trial was essentially a sham, and jeopardy never actually attached. (Normally jeopardy “attaches” – comes into play – the moment the jury is sworn in, or at a bench trial the moment the judge begins hearing evidence).
Probably… but not necessarily. This is explained in good detail in Ashe v. Swenson, but the short review is that the jury doesn’t necessarily list each and every fact they found to be true. They simply give a verdict.
So the application of collateral estoppel to the next trial is: did the jury’s acquittal necessarily mean that an issue of fact was decided against the state in such a way as to insulate you in that next trial? Your bomb example is a good one, in that it’s very difficult to imagine any theory of a bombing case that would allow a second conviction after an acquittal.
But here’s a tougher one:
Jones is arrested by DEA agents, who testify at trial that pursuant to a valid warrant they kicked down Jones’ door one evening and found Jones and his friend Smith in possession of large quantities of cocaine, most of which he had flushed down the toilet, after which they charged Jones with conspiracy to distribute controlled substances, a crime that includes a requirement of at least 50 grams of cocaine be involved. Jones’ defense is that he had only a tiny amount of cocaine for personal use and the DEA agents were lying about how much cocaine was present. Smith takes a deal and testifies against Jones, saying that they had weighed the coke before the door was bashed in and there was 1.5 kilograms. The jury acquits Jones.
Then the government re-indicts Jones, this time for possession with intent to distribute controlled substances - i.e., cocaine. This crime also requires at least 50 grams to allow a presumption of intent to distribute. As evidence, the government wants to present the same testimony of the same DEA agents and Smith about how much cocaine Jones had.
Can they?
Well, usually I cop to the fact that all mistakes are mine and not the editors.
But maybe the editor isn’t reading and I can lay off all the blame.
I think you quoted the wrong post. And Brogan (and the underlying statute) applies only to federal investigations.
I linked to the Paul Warner Powell case in post #28, which happened in Virginia. The stars had to line up just right for it to happen, but happen it did.
The purpose of double jeopardy prohibition was to prevent the government from endlessly retrying a case in an effort to get a conviction. “Did we say ‘conspiracy?’ Our bad - we meant possession with intent, totally different” sounds like an attempt to keep swinging until you hit one. Using that as the heuristic, I would guess the answer is “no”.
Whether it is actually constitutional would depend on who was on the Court at the time the case was tried.
Don’t leave us hanging. I have a bet going with myself.
I don’t know the details about the bribery deal… but how would anyone know Aleman wasn’t in jeopardy until the judge actually aquitted him (or whatever the ruling was)? Couldn’t the judge have taken Aleman’s money with a verbal agreement to aquit him somehow, gone through the trial, and convicted him anyways (say, after growing to dislike the guy after hearing all the evidence)? I mean it’s not like the judge would have issued the guy a reciept for the bribe and had a contract written out guarenteeing he wouldn’t let Aleman get convicted.
Also, what if the judge had died during trial and been replaced by a different one… Aleman bribed the original judge but would only be safe if that particular judge followed through with their deal.
Lastly, was it proven that the judge aquited him because of the bribe? Couldn’t he have decided to aquit for a number of other reasons?
Since it’s a different crime they should be fine there. It sounds more like a question of what’s admisable as evidence during that different trial. Not knowing anything about those rules I’d only hazard a guess that if the testimony was good enough to be admissible for crime A, it would also be good enough for crime B, if you mean they intend to have Smith come testify again. If they just want to use the transcript of him testifying previously, I think it may depend on if the jury in that previous trial made some statement of their specifically finding the testimony of Smith horribly unreliable… or perhaps the standards for evidence in Crime B are differnt than for Crime A (not withstanding the common one for amount of cocaine) ; I don’t know.
But I’d say it shouldn’t really matter that both crimes share a common requirement that there has to be the same amount of cocaine (because there are presumably a bunch of other requirements too), or that they are linked to the same incident either. It seems fairly straight forward that you could be tried for poaching a deer out of season… and separately of possesing a prohibited weapon (which you did the killing with) on that same hunting trip.
He was acquitted by the bribed judge. In any event, jeopardy attaches in a bench trial when the judge starts hearing evidence, not when he rules.
Many States have very similar laws. Right, Bricker?
How about Emmett Till’s murderers?
No doubt. But Brogan does not control state courts’ interpretation of their own laws, unless they explicitly defer to federal courts.
(post shortened)
*On December 8, 1993, a Cook County, Illinois, grand jury returned an indictment charging Harry Aleman, a reputed crime syndicate assassin, with the murder of William Logan, a truck dispatcher and Teamsters union steward, who was shot to death outside his home in Chicago in 1972. Indictments for murder are not uncommon in Cook County. What is unusual about this particular indictment, however, is that Aleman previously had been acquitted of Logan’s murder, having been found not guilty following a bench trial in 1977.
At first glance it would appear that the Double Jeopardy Clause of the Fifth Amendment bars the second prosecution of Aleman and prohibits the
state of Illinois from forcing him to defend himself a second time for the same offense. Cook County State’s Attorney Jack O’Malley contends, however, that the guarantee against double jeopardy does not protect Aleman because his acquittal resulted from a $ 10,000 bribe paid to the trial judge by a corrupt lawyer at the behest of local politicians with ties to the crime syndicate. According to O’Malley, Aleman was never in “jeopardy” at his first trial. On October 12, 1994, a circuit court judge accepted O’Malley’s legal argument and refused to grant Aleman’s motion to dismiss the 1993 indictment on double jeopardy grounds. On March 9, 1995, following an evidentiary hearing, the judge concluded that the judge at Aleman’s first trial had been bribed to find Aleman not guilty, and* …
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Harry Aleman was a hitman for the Mafia. He may have had other hobbies, but killing people was one of them. Once a judge is bribed, they stay bribed. Capiche?
If the judge had died during the trial, Aleman would probably know who the assassin was.
But, without knowing the actual statutes, my guess is that the overlap of required facts between conspiracy to distribute and possession with intent to distribute is pretty big. Maybe the only difference is the conspiracy requires another person to be involved.
Sure, one overlapping fact doesn’t necessarily make them the same, but if virtually all the facts are the same, that’s probably two bites at the apple.