# Question about the Double Jeopardy rule **URL:** \ **Category:** Factual Questions\ **Created:** [May 2, 2011, 3:34am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444 "2011-05-02T03:34:31Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![mittu](https://avatars.discourse-cdn.com/v4/letter/m/ecd19e/32.png) [@mittu](https://boards.straightdope.com/u/mittu)\ **Post date:** [May 2, 2011, 3:34am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/1 "2011-05-02T03:34:31Z")
Imagine this hypothetical situation; a man is found guilty of murder and serves time in prison. Some time later new evidence indicates he is innocent and he is then released. Some time after this further evidence is found which proves he was guilty all along. Can the man be re-tried and sent back to prison or would the Double Jeopardy rule prevent this? ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [May 2, 2011, 4:40am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/2 "2011-05-02T04:40:08Z")
If this ever happened in real life, the District Attorney may avoid it by charging him with a different, lower offense. So that if he is convicted of this, the sentence for that added on to the time he has already served for the murder conviction will total something similar to the typical time served for murder. ---
**Author:** ![mac\_bolan00](https://avatars.discourse-cdn.com/v4/letter/m/b3f665/32.png) [@mac\_bolan00](https://boards.straightdope.com/u/mac_bolan00)\ **Post date:** [May 2, 2011, 5:09am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/3 "2011-05-02T05:09:07Z")
i think having gone through all that process is sufficient punishment for him (had it been something besides murder.) ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [May 2, 2011, 5:22am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/4 "2011-05-02T05:22:35Z")
Stupid question time: assuming that the prisoner in the OP was released ahead of his scheduled release date, why couldn’t they just reimprison him on the original sentence/conviction, and rescind any pardon that might’ve been granted? ---
**Author:** ![Hail\_Ants](https://avatars.discourse-cdn.com/v4/letter/h/dc4da7/32.png) [@Hail\_Ants](https://boards.straightdope.com/u/Hail_Ants)\ **Post date:** [May 2, 2011, 6:08am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/5 "2011-05-02T06:08:55Z")
It must be phrased as a question! 😃 ---
**Author:** ![mittu](https://avatars.discourse-cdn.com/v4/letter/m/ecd19e/32.png) [@mittu](https://boards.straightdope.com/u/mittu)\ **Post date:** [May 2, 2011, 6:54am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/6 "2011-05-02T06:54:26Z")
> [@Leaper](#): > > Stupid question time: assuming that the prisoner in the OP was released ahead of his scheduled release date, why couldn’t they just reimprison him on the original sentence/conviction, and rescind any pardon that might’ve been granted? This is what I was wondering, they would need to have another trial though to present the new evidence, i’m just not sure if this counts as being tried for the same crime twice or not. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [May 2, 2011, 7:09am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/7 "2011-05-02T07:09:52Z")
> [@t-bonham@scc.net](#): > > If this ever happened in real life, the District Attorney may avoid it by charging him with a different, lower offense. So that if he is convicted of this, the sentence for that added on to the time he has already served for the murder conviction will total something similar to the typical time served for murder. I really don’t believe that’s legitimate. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [May 2, 2011, 9:31am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/8 "2011-05-02T09:31:25Z")
The double jeopardy rule isn’t a “Get out of jail free” card. There is always something else they can charge you with. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [May 2, 2011, 9:57am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/9 "2011-05-02T09:57:01Z")
But not for the same incident. That’s the whole point of double jeopardy. It’s not a “get out of jail free card,” but rather a “government can’t keep hassling the courts until they convict you no matter how many times they lose” right. You might want to look up that last word. Just a suggestion, mind you. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [May 2, 2011, 6:52pm UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/10 "2011-05-02T18:52:54Z")
And the whole “actual innocense” thing where you can produce evidence after the trial is an exception to the “finality of judgments” principle of common law countries. Basically, the way that the courts operate is that issues should not be relitigated over and over whenever a new witness is found or new evidence discovered, but need to be closed definitively. ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [May 2, 2011, 6:57pm UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/11 "2011-05-02T18:57:03Z")
This ws the plot for some movie: A husbanf sets up his disappearance to make his wife look guilty of his murder. She is convicted and does the time. The day she is released from prison, he shows up, anf she kills him. Trying her again would be redundant. She already did the time. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 2, 2011, 7:30pm UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/12 "2011-05-02T19:30:05Z")
> [@Hail\_Ants](#): > > It must be phrased as a question! 😃 I see I wasn’t the only person who came into this thread thinking it was about the game show. ---
**Author:** ![casdave](https://avatars.discourse-cdn.com/v4/letter/c/c6cbf5/32.png) [@casdave](https://boards.straightdope.com/u/casdave)\ **Post date:** [May 2, 2011, 7:34pm UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/13 "2011-05-02T19:34:31Z")
In the UK we do have double jeopardy, > **[Double jeopardy](https://en.wikipedia.org/wiki/Double_jeopardy)** > > In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction. Double jeopardy is a common concept in criminal law. In civil law, a similar concept is that of res judicata. Variation in common law countries is the peremptory plea, which may take the speci... But, you can’t be convicted on the same evidence unless the original trial was defective in some major way.The standard for retrial on the same charge is so high that there have been very few.These are the only three since this change to the law came into force. > **['Loner' convicted of murder in double jeopardy retrial](https://www.theguardian.com/uk/2010/dec/13/loner-convicted-murder-double-jeopardy)** > > Mark Weston jailed for life after being acquitted in 1996 > **[Double jeopardy killer jailed for life](https://www.theguardian.com/uk/2006/oct/07/ukcrime.prisonsandprobation)** > > · Courtroom history made in wake of change in law· Murderer confessed after acquittal 15 years ago > **[BBC One - Crimewatch Live](https://www.bbc.co.uk/programmes/b00ss27z)** > > Crimewatch hits the streets of Britain to appeal for help with unsolved cases. ---
**Author:** ![Skammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skammer/32/143_2.png) [@Skammer](https://boards.straightdope.com/u/Skammer)\ **Post date:** [May 2, 2011, 7:51pm UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/14 "2011-05-02T19:51:05Z")
> [@Annie-Xmas](#): > > This ws the plot for some movie: A husbanf sets up his disappearance to make his wife look guilty of his murder. She is convicted and does the time. The day she is released from prison, he shows up, anf she kills him. > > Trying her again would be redundant. She already did the time. That might fly in an Ashley Judd movie, but real Double Jeopardy doesn’t work that way. The murder she was originally convicted and served time for is not the same crime she commits when released, even if it is the same type of crime and the same victim. She would (rightly) be prosecuted again for the second murder. If she had robbed him twice, you wouldn’t argue she gets the second one “free” just because she was convicted of the first one. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [May 2, 2011, 10:29pm UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/15 "2011-05-02T22:29:20Z")
> [@Skammer](#): > > That might fly in an Ashley Judd movie, but real Double Jeopardy doesn’t work that way. I _think_ that the comment was intended to be a joke. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 3, 2011, 12:05am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/16 "2011-05-03T00:05:28Z")
My understanding is that the state basically gets one chance to convict you of a specific crime. They can’t retry you because new evidence was found. Which makes sense. There’s always going to be new evidence to be found. If the state could keep retrying the same case over and over again, it could keep somebody in court forever. So the burden is placed on the state to present its best case the first time. Another misconception is that new evidence leads to an automatic release. This not the case. Once somebody is convicted of a crime, the burden of proof is placed on him to have the decision overturned. It isn’t enough for the new evidence to show he might be innocent (which should work at the initial trial) - the new evidence has to essentially prove he’s innocent beyond any reasonable doubt. It’s not quite as high a standard as the state has (the possibility of appeal exists) but a defense, like the prosecution, is still advised to make its best case the first time. ---
**Author:** ![rbroome](https://avatars.discourse-cdn.com/v4/letter/r/838e76/32.png) [@rbroome](https://boards.straightdope.com/u/rbroome)\ **Post date:** [May 3, 2011, 12:42am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/17 "2011-05-03T00:42:36Z")
> [@Monty](#): > > But not for the same incident. That’s the whole point of double jeopardy. It’s not a “get out of jail free card,” but rather a “government can’t keep hassling the courts until they convict you no matter how many times they lose” right. > > You might want to look up that last word. Just a suggestion, mind you. I don’t believe this is the case. I am not a lawyer, but the definition of double jeopardy involves the crime, not the act. If you and a partner plot a murder, and you pull the trigger, you are guilty of murder. If for some reason, you aren’t convicted, the state can also charge you with conspiracy. [http://www.lectlaw.com/def/d075.htm](http://www.lectlaw.com/def/d075.htm) I believe it is better under the law to file all the charges at once, and then keep trying them until a conviction results. But I don’t think it is required. The state can keep bringing new charges until one sticks. The old “tough on crime” thing. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 3, 2011, 12:51am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/18 "2011-05-03T00:51:06Z")
> [@rbroome](#): > > I don’t believe this is the case. I am not a lawyer, but the definition of double jeopardy involves the crime, not the act. If you and a partner plot a murder, and you pull the trigger, you are guilty of murder. If for some reason, you aren’t convicted, the state can also charge you with conspiracy. > > [http://www.lectlaw.com/def/d075.htm](http://www.lectlaw.com/def/d075.htm) > > I believe it is better under the law to file all the charges at once, and then keep trying them until a conviction results. But I don’t think it is required. The state can keep bringing new charges until one sticks. The old “tough on crime” thing. True in the case of conspiracy, untrue in general. Lesser included offenses generally merge with the greater offense. You can’t convict me of murder _and_ assault and battery if I beat someone to death. You can convict of other crimes, but not “lesser included offenses.” Conspiracy is generally considered to always be a separate offense from the crime itself, and thus it is a crime which can always be handled separately. [Link](http://criminal.lawyers.com/Criminal-Law-Basics/Merger-Doctrine-and-Criminal-Sentencing.html) ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 3, 2011, 12:55am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/19 "2011-05-03T00:55:26Z")
> [@rbroome](#): > > I don’t believe this is the case. I am not a lawyer, but the definition of double jeopardy involves the crime, not the act. If you and a partner plot a murder, and you pull the trigger, you are guilty of murder. If for some reason, you aren’t convicted, the state can also charge you with conspiracy. I don’t think that example is true. In order to be tried for a seperate offense, it has to be something you can be found guilty of even though you were found innocent of the original crime. So you couldn’t be found guilty of a conspiracy to commit a crime (which essentially is forming an agreement to commit a crime with somebody else) when you were found innocent of committing the crime. Legally, you didn’t commit a murder so logically you can’t have committed a murder with somebody else. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [May 3, 2011, 1:07am UTC](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444/20 "2011-05-03T01:07:45Z")
> [@John\_Mace](#): > > I see I wasn’t the only person who came into this thread thinking it was about the game show. Knew it wasn’t about the show, but surprised it took so long for the joke. [Next page](https://boards.straightdope.com/t/question-about-the-double-jeopardy-rule/580444.md?page=2)