Story Idea: Could a man convicted of murder later sue the "victim"?


Husband and wife are having terrible problems in their marriage. He’s abusive, she sleeps around, they fight, both drink too much, etc.

He decides to be rid of her, but he has money and can’t stand the idea of having to split it all with her in a divorce. So he hires a hitman – and unlike all these things seem to work out in real life, he actually manages to hire a real hitman (not some undercover cop) and the hitman is competent: he targets the right person and he has a practiced method that includes disposing of the body so there is no practical way it can ever be found.

So this goes off smoothly: the husband pays the upfront fee, the wife is seen to be abducted and never seen again, the husband pays the rest of the fee. All seems fine (from hubby’s POV): wife is gone, it only cost his some thousands vs. half of many millions. The police suspect his involvement, but of course he has an unbreakable alibi for the time she was kidnapped.

Unfortunately, the hitman is caught in the act doing another hit just a few months later by some weird fluke. And as part of a deal to avoid the death penalty he ends up giving evidence against all the people who had hired him along the way.

Husband gets tried for murder, convicted, and sentenced to, what, twenty years? and off to prison he goes.

However… wife didn’t actually die. Hitman’s method involved something like locking the unconscious/drugged person in a car trunk and then having it compacted. (Anyway, something that left the victim undead for while until automatically destroyed a bit later. Details still under construction.) In this case the victim came to and escaped somehow. She realizes that husband must have been behind it, but she’s scared he will just try again if she goes to the police, so she decides to simply run and hide under a new identity.

While hiding she follows the news about her ‘death’, and then the husband’s trial. “Serves him right,” she thinks and is greatly satisfied at the thought of him rotting in jail.

A few years later she gets involved in some minor brush with the law that gets her fingerprints taken, and her real name is discovered. Whoops!

What can happen next?

The husband was convicted of murder (conspiracy to commit murder?) but the murder didn’t happen. Does his conviction and sentence just go away?

Or do they somehow decide, well, okay, he should have been tried for ATTEMPTING to commit murder instead. Can they retry him for that? Or would that be barred for double jeopardy?

If they try him, and convict him, would the years he’d served be counted towards the new sentence? Like, he is sentenced to 10 years on the attempted murder, but he’d already been in prison for eight years for the murder so he only has to serve two more years?

And now that she’s been outed, anyway, can the wife go ahead and divorce the guy and try for half his estate? (I think trying to murder you must count as grounds for divorce.)

But what most interests me is, what can the husband legally do to the wife? Is she guilty of a crime because she’d sat back and knowingly watched him be convicted of a crime that hadn’t even happened? If not, could he at least sue her for something, for the eight years he was locked up?

Anyone, anywhere can always **try **to sue someone else. They may win or they may lose. However, they can always try. (I think).

If you initiate a lawsuit against someone that results in causing them some kind of damage, they may in turn, sue you. You may even be charged with some kind of criminal offense. Although, for the life of me, I cannot remember what that criminal offense is called. I just don’t remember.

These are just my opinions and they are worth very little more or less than anyone else’s opinions. So, pls don’t take them too serious like.

P.S. Somehow, I get the feeling you may have posted this in the wrong forum.

I think it belongs in the IMHO forum.

But … that is just my Honest Opinion.

As mentioned he can try, but any judge that would let him get away with it needs shooting. The wife has no obligation to make her presence known to someone who has already tried to murder her once, and the husband is still just as evil as he was before - having your murder attempt thwarted doesn’t mean you’re not a murderer at heart.

Key question: on what charge, specifically, was his conviction based?

It makes a difference. The facts support a conspiracy charge. Conspiracy is the agreement, among at least two people, to commit a crime. That crime was complete the moment he and the hitman agreed to the killing. Her survival is not relevant to the crime’s completion.

The facts also support murder, as a principal, even though he did not “pull the trigger.” But one element of that charge is, indeed, the death of a human being.

So he could overturn his conviction on the basis of newly discovered actual innocence.

Double jeopardy would not prevent a retrial on attempted murder.

The reason for this can be a bit confusing, and even brilliant legal commentators have been guilty of sowing confusion on this point. As one such luminary wrote in 2007:

That writer was brilliant, suave, and handsome, but sadly lazy when he wrote that paragraph. The actual rule is a bit more complicated: the retrial after acquittal for related crimes is barred when the jury’s acquittal rests on grounds that the prosecution would have to prove at the new trial. In other words, my hypothetical didn’t envision that an acquittal might rest on the grounds that a death didn’t occur. I was picturing an acquittal on perhaps an alibi that placed the shooter far away from the scene, so the jury’s acquittal would mean the jury didn’t buy the prosecution’s claim he was there pulling the triggers. In that case, the government typically can’t come back and try you for discharge of a firearm: they already tried to prove you did that once.

This arises from a principal called “collateral estoppel,” and is explained nicely in the criminal context in a Supreme Court case called Ashe v. Swenson.

In this thread’s hypothetical, we’re talking about retrial after an acquittal, but the grounds for the acquittal are clear, and a jury already found against the accused. So the Double Jeopardy Clause would not bar reprosecution.

Not so far as I am aware. I defer to those more versed in civil law for the answer to “can she sue,” because torts are not my cuppa tea, but I am not aware of any criminal law that she violated.

The tort of negligence requires a breach of duty. She didn’t have any duty to act here. She didn’t cause this situation. Likewise, I don’t see any liability for an intentional tort, such as “outrage”. You could probably come up with something if you really tried, but I’m not optimistic

I dont think the OP’s scenario would work. But of course if* the wife* arranged a fake death and framed her husband for murder, than not only a lawsuit, but criminal charges.

I agree. The wife had no legal duty to act under these circumstances. Only in Minnesota and Vermont IIRC do you have a duty to act to help someone whose life is in danger (which his wasn’t, shower shankings aside, since it wasn’t a capital case), and even then only if you can do so safely.

And yes, she could still divorce him.

I actually wavered, but most threads about stories seem to arise here. I won’t cry if a Mod wants to move it though.

Excellent to know. Since I need him to be freed, murder it will be.


How about the question of him getting ‘credit’ for the time he wrongly served already? It sounds sort of weird, but otherwise someone could end up serving much longer because he failed to kill (both a chunk of the first sentence and the whole second sentence) than if he’d actually killed her.

Sort of combining the two – I do want the hubby to actually be guilty of trying to kill her, but how guilty would she have to be to be at risk?

Suppose the police investigation is at a dead end, and this irks her. What if she planted some evidence that pointed to the husband?

Or, how about she makes an anonymous call to the police, claiming that the hitman (somehow she’s learned his name, guess he was careless or so sure she’d die that it didn’t matter to him) and she were out drinking one night and he’d told her that a) he’d done the crime and b) that the husband had hired him? And that lie is what got the police on to the hitman and thus the evidence that led them to charge the husband in the first place? Any good?

How about she learns he is trying to hire a hitman, so fakes her murder and pins it on him, they find the phones calls, etc.

If she took any steps specifically to avoid being found by the police in the course of the murder investigation, or if she actively destroyed evidence that, if found, would have led the police to determine that she was still alive, she might be guilty of obstruction of justice. Changing her name to impede discovery of her identity might count, depending on the details.

On the civil side, changing one’s name for an improper purpose can be fraudulent in some circumstances, like evading creditors. I don’t know that the husband could make out a case here, though, if only because he probably hasn’t suffered damages; most places punish an attempted murder just as severely as a completed one, I think.

I’m finding this fascinating. Another question to those who know the relevant US laws -

If they were a normal couple and divorced I imagine the starting point would be in the order of a 50-50 split of combined assets. Would demonstration of murderous intent by one party skew that, or is the principle to keep civil and criminal issues separate?

If husband murders wife prior to divorce and inherits the lot, then does the additional money [her 50%] represent proceeds of the crime that are subject to forfeiture? Wouldn’t her interests be best served by going to the police after nearly being cubed, take him to the cleaners and put him away?

How would wife still at risk from husband if he’s stony broke and in jail? Her desire to hide is the weakest part of the original scenario to me.

She was hiding out, so she was concealing evidence that would have led to the overturning of his conviction…

So… If someone knows I’m innocent, and deliberately withholds that knowledge, with the intent of keeping me in prison longer than is right…is that a crime? Is it something I can sue them for? The latter, at very least, seems supportable: they did something that harmed me, with the intent of harming me, with no reasonable justification.

I think the guy in the hypothetical has a chance at a victory in court, against his wife, for intentionally concealing exculpatory evidence.

Anyway, for a book or story plot, it certainly works. Legal cases in fiction aren’t held to the same standards they are in reality.

(I just read Robert Heinlein’s “The Star Beast.” The trial scene there is a grotesque farce, and one of the least believable depictions of a legal hearing I’ve ever read. Okay, yeah, fun book, but holy puke, that judge and that bureaucrat wiped their butts with the law!)

Give it a try!

May I recommend to the OP: go to the courthouse and sit in on a trial or two? Good clean entertainment, highly educational, costs you nothing more than downtown parking fees, and you’ll pick up all sorts of useful procedure and jargon. Seriously: I used to do that when I was a starving college student. Cheaper than a movie, and often more fun!

Her existence isn’t evidence.

How does judicial finality fit in?

Let’s say that before the wife is discovered, he has already been through all levels of appeals and turned down. No further error of law or procedure has been discovered. Can he keep claiming there is new evidence of factual innocence and expect to have it considered?

That she wasn’t murdered? How could it possibly not be?

I believe appeals can be renewed on the basis of new evidence. (I can’t cite this, but I believe it has happened.)

Do you have any legal citations for jurisprudence in 22nd century Centerville?

Generally, anyone who is not a lawyer involved in your case has no obligation to do anything for your case unless the court tells them to. The prosecutor has to turn over exculpatory evidence to your lawyer, and your lawyer has to defend you, but third parties have no obligation to try to help your case. Generally, you can’t claim that someone who is simply living their life ‘did something that harmed you’ - they would need to take an action or ignore a legal obligation of some sort.

And really, ‘no reasonable justification’? In the hypothetical, YOU TRIED TO KILL HER. Hiding from a person who has already attempted to murder you is pretty damn reasonable to most people.

Can you find an example of something like this happening ever? The only cases I’m aware of remotely like that involve a prosecutor who didn’t disclose exculpatory evidence, which is completely different than the victim of a crime not coming forward to try to clear the name of her attacker.

I think that depends on at what point in the trial, conviction, imprisonment, and appeal she learns about the trial. If she learns about his trial while it is still going on, then one could construe that as concealing evidence of his innocence. But if he has already been convicted when she finds out what is happening, she is no longer concealing evidence, because he will be in the appeals process, and evidence of innocence is not part of the appeals process. You can’t re-argue the original case during the appeals. Now, if she chooses to come forward, his conviction wil probably be dismissed, and he will be granted a new trial.

But, supposed he has decided that he doesn’t want to spend 20 years to life in prison for murder, so he pleads guilty to hiring a hitman, and is sentenced to 7 1/2 to 15 years. He is guilty of that, and it is probably the least of the crimes he could be charged with. He reappearance does not alter anything.

If he was sentenced to 20 years to life for murder, and served 30 years when she reappeared, he will probably plea bargain to something, and be sentenced to time served.

Whether or not he could sue her would depends on the length of time he served vs. the maximum sentence he could have received for attempted murder.

Let’s say that convictions for attempted murder, conspiracy to commit murder, and hiring a hit man, drawing all maximum sentences, and serving them consecutively (not concurrently) totals 45 years, and when she reappears, he has served 48 years of a life sentence.

He can maybe sue her for lost earnings he could have made during the three-year difference, plus pain and suffering-- but just three years’ worth.

Since she is probably going to divorce him, I bet that what would happen is that he would agree not to sue for anything over the three years, in exchange for some concession in the divorce proceedings. That benefits then both, because they spend less in legal fees.