# When does the "double jeopardy" rule not apply? **URL:** \ **Category:** Factual Questions\ **Created:** [October 9, 2014, 4:59am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828 "2014-10-09T04:59:47Z")\ **Posts on this page:** 12\ **Page:** 1
**Author:** ![davidmich](https://avatars.discourse-cdn.com/v4/letter/d/e56c9b/32.png) [@davidmich](https://boards.straightdope.com/u/davidmich)\ **Post date:** [October 9, 2014, 4:59am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/1 "2014-10-09T04:59:47Z")
Hi My question is regarding the double trial of Michael Dunn for the murder of Jordan Davis. Why was second trial allowed to proceed? Was it because the jury was deadlocked during the first trial? I look forward to your feedback. davidmich > **[To Raise, Love, and Lose a Black Child: The Life and Death of Jordan Davis](https://www.theatlantic.com/politics/archive/2014/10/to-raise-love-and-lose-a-black-child/381189/?single_page=true)** > > Jordan Davis's mother, Lucia McBath, reflects on the guilty verdict in his murderer's trial. In his first trial, Dunn was convicted of attempted murder, for shooting—unjustifiably—at Davis’s friends. He was not convicted of murdering Jordan Davis after the jury deadlocked. The state of Florida retried the case, and this time convicted Dunn of first-degree murder. wikipedia Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction. In common law countries, a defendant may enter a peremptory plea of autrefois acquit or autrefois convict (autrefois means “in the past” in French), meaning the defendant has been acquitted or convicted of the same offence.[1] If this issue is raised, evidence will be placed before the court, which will normally rule as a preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries, including Canada, Mexico and the United States, the guarantee against being “twice put in jeopardy” is a constitutional right. In other countries, the protection is afforded by statute.[3] ---
**Author:** ![Emtar\_KronJonDerSohn](https://avatars.discourse-cdn.com/v4/letter/e/58956e/32.png) [@Emtar\_KronJonDerSohn](https://boards.straightdope.com/u/Emtar_KronJonDerSohn)\ **Post date:** [October 9, 2014, 5:06am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/2 "2014-10-09T05:06:41Z")
A deadlocked jury is not an acquittal, it is a mistrial. Acquittals and convictions must be unanimously agreed upon by the jury. ---
**Author:** ![davidmich](https://avatars.discourse-cdn.com/v4/letter/d/e56c9b/32.png) [@davidmich](https://boards.straightdope.com/u/davidmich)\ **Post date:** [October 9, 2014, 5:38am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/3 "2014-10-09T05:38:32Z")
Thanks Emtar Kron JonderSohn. That was my assumption too. But wikipedia is stating the opposite it seems: “Conditions which constitute “conclusion” of a case include…a directed verdict after a deadlocked jury,[48]” Am I misreading this? Was there no final verdict after the first trial? What could warrant sufficient grounds for a second trial? ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [October 9, 2014, 6:19am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/4 "2014-10-09T06:19:31Z")
Was there a directed verdict after the jury deadlocked in this case? If not, then double jeopardy does not apply. ---
**Author:** ![davidmich](https://avatars.discourse-cdn.com/v4/letter/d/e56c9b/32.png) [@davidmich](https://boards.straightdope.com/u/davidmich)\ **Post date:** [October 9, 2014, 6:23am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/5 "2014-10-09T06:23:48Z")
This seems to give a better explanation, but it’s still a little confusing. Mistrials can be called by the presiding judge on a charge/charges and the person tried (it seems) can be retried on other charges later. I’m not sure exactly how a second trial is justified, but it seems to tie in with other charges. > **[Michael Dunn Jordan Davis Murder Trial Florida](https://www.refinery29.com/en-us/2014/02/62685/michael-dunn-jordan-davis-trial)** > > A partial verdict was reached yesterday in the trial of Michael Dunn. Firing a gun into a car full of teenagers apparently constitutes second-degree attempted murder in Florida, where jurors found Dunn guilty of three counts for which he could face up to 60 years in prison. Justice, in that case, has been served. The jury couldn’t come to a decision on the first-degree murder charge, however, and the judge declared a mistrial on that count, which means Dunn will see yet another courtroom. But, even if Dunn’s actions didn’t meet all of the qualifications of first-degree murder, the jury also remained deadlocked on lesser charges — including second-degree murder, manslaughter, and justifiable homicide — that were automatically included with the first-degree murder charge. ---
**Author:** ![davidmich](https://avatars.discourse-cdn.com/v4/letter/d/e56c9b/32.png) [@davidmich](https://boards.straightdope.com/u/davidmich)\ **Post date:** [October 9, 2014, 6:33am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/6 "2014-10-09T06:33:53Z")
So it seems retrying someone for the crime of killing someone else can be tried more than once. I’m still not sure what the legal grounds are in this case, though. > **[Breaking News: Michael Dunn convicted of first-degree murder in Jordan Davis'...](https://www.salon.com/2014/10/01/breaking_news_michael_dunn_convicted_of_first_degree_murder_in_jordan_davis_death/)** > > Months after another jury convicted Dunn of lesser counts but deadlocked on first-degree charge, a new conviction A Jacksonville, Florida jury on Wednesday convicted Michael Dunn of first-degree murder in the 2012 killing of unarmed African-American teenager Jordan Davis, after another jury convicted Dunn on four lesser charges in February but failed to reach a verdict on the first-degree murder charge. ---
**Author:** ![davidmich](https://avatars.discourse-cdn.com/v4/letter/d/e56c9b/32.png) [@davidmich](https://boards.straightdope.com/u/davidmich)\ **Post date:** [October 9, 2014, 7:46am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/7 "2014-10-09T07:46:17Z")
found the answer > **[Dunn verdict a win for prosecution, despite critics | CNN](https://edition.cnn.com/2014/02/18/opinion/cevallos-dunn-verdict-critics/index.html)** > > Danny Cevallos says Dunn faces a very long prison sentence and the possibility of a retrial on murder charges When a judge discharges a jury on the grounds that the jury cannot reach a verdict, the double jeopardy clause of the Fifth Amendment to the Constitution does not bar a new trial of the defendant. ---
**Author:** ![jz78817](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jz78817/32/1028_2.png) [@jz78817](https://boards.straightdope.com/u/jz78817)\ **Post date:** [October 9, 2014, 11:30am UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/8 "2014-10-09T11:30:49Z")
> [@davidmich](#): > > found the answer > [http://edition.cnn.com/2014/02/18/opinion/cevallos-dunn-verdict-critics/index.html](http://edition.cnn.com/2014/02/18/opinion/cevallos-dunn-verdict-critics/index.html) > > When a judge discharges a jury on the grounds that the jury cannot reach a verdict, the double jeopardy clause of the Fifth Amendment to the Constitution does not bar a new trial of the defendant. correct. “Double Jeopardy” means a defendant can’t be re-tried on the same charges if he/she is found “Not Guilty” by verdict. If there is a hung jury (or other grounds for the judge to declare a mistrial) then there is no verdict and a new trial can be held. ---
**Author:** ![davidmich](https://avatars.discourse-cdn.com/v4/letter/d/e56c9b/32.png) [@davidmich](https://boards.straightdope.com/u/davidmich)\ **Post date:** [October 9, 2014, 12:00pm UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/9 "2014-10-09T12:00:46Z")
jz78817 Thanks for that confirmation. davidmich ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 9, 2014, 1:27pm UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/10 "2014-10-09T13:27:57Z")
> [@jz78817](#): > > correct. “Double Jeopardy” means a defendant can’t be re-tried on the same charges if he/she is found “Not Guilty” by verdict. If there is a hung jury (or other grounds for the judge to declare a mistrial) then there is no verdict and a new trial can be held. Well, there’s still some nuance. If the judge declares a mistrial over defense objections, or the mistrial is due to prosecution misconduct, double jeopardy still might apply. For example, let’s imagine that the trial starts to go very badly for the prosecution. A key witness gets discredited, perhaps, and it’s suddenly looking like a sure-fire loss. The prosecution suddenly starts blurting out the accused’s past criminal record and information about excluded evidence, the judge declares a mistrial, and then the prosecution has a second chance to prep their witness (not not call him) at the second trial. That’s not permitted. [Here is a column I wrote seven years ago as a Staff Report.](http://www.straightdope.com/columns/read/3032/what-happens-if-you-confess-to-a-crime-after-being-found-not-guilty) It’s not directly on point, but may be of some interest. ---
**Author:** ![davidmich](https://avatars.discourse-cdn.com/v4/letter/d/e56c9b/32.png) [@davidmich](https://boards.straightdope.com/u/davidmich)\ **Post date:** [October 9, 2014, 1:51pm UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/11 "2014-10-09T13:51:25Z")
Very helpful Bricker. Thanks for that. davidmich ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 9, 2014, 2:40pm UTC](https://boards.straightdope.com/t/when-does-the-double-jeopardy-rule-not-apply/700828/12 "2014-10-09T14:40:42Z")
> [@Emtar\_KronJonDerSohn](#): > > A deadlocked jury is not an acquittal, it is a mistrial. Acquittals and convictions must be unanimously agreed upon by the jury. This is not an absolute rule. It is true in Florida, but only because we have 6 member juries. In _Burch v. Louisiana_, SCOTUS said guilt must be unanimously decided if a jury is that small (and in another case it held that 6 is the smallest number the Constitution permits). The court had previously held that unanimity was not a constitutional requirement for a jury of 12, and that appears to remain good law; Louisiana and Oregon still permit 10-2 convictions, and SCOTUS refused to take up the issue again [last year](http://www.csmonitor.com/USA/Justice/2013/0219/Unanimous-juries-for-criminal-convictions-Supreme-Court-declines-case). > [@davidmich](#): > > Thanks Emtar Kron JonderSohn. That was my assumption too. > > But wikipedia is stating the opposite it seems: > “Conditions which constitute “conclusion” of a case include…a directed verdict after a deadlocked jury,[48]” > > Am I misreading this? Was there no final verdict after the first trial? What could warrant sufficient grounds for a second trial? A directed verdict (in the criminal context) is a judge’s ruling that the defendant is not guilty. It is taken “as a matter of law” and means the judge has found that the jury _could not reasonably have reached_ a guilty verdict. In essence, it takes the decision out of the jury’s hands and thus may be appealed by the prosecution - after which a new trial can be ordered.