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Forum locked This topic is locked, you cannot edit posts or make further replies.  [ 16 posts ] 
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 Post subject: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:27 pm 

Joined: Tue Jul 03, 2007 3:31 pm
Archived Posts: 272
Location: 2700 miles from my law school.
Assume Defendant is acquitted of attempted murder, and then Victim dies. Can D be charged with murder?

It seems like attempted murder would be a "lesser crime" than murder...so I would think double jeopardy would preclude trying D again.


Last edited by conch republic on Fri Apr 24, 2009 2:40 pm, edited 1 time in total.

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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:34 pm 

Joined: Wed Aug 27, 2008 11:33 pm
Archived Posts: 5720
http://www.uscourts.gov/outreach/DJ/index.htm


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:34 pm 

Joined: Sun Feb 08, 2009 10:54 pm
Archived Posts: 97
Saw a movie (Fracture (2007)) where the defendant was charged with attempted murder and was acquitted. The victim later dies and the defendant is then charged with murder and new evidence is retrieved from the victim's body. Because the crimes with which he is charged are different, the defendant is not protected. Great fucking movie by the way.

http://www.imdb.com/title/tt0488120/synopsis


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:40 pm 

Joined: Wed Aug 27, 2008 11:33 pm
Archived Posts: 5720
madisonian wrote:
Saw a movie (Fracture (2007)) where the defendant was charged with attempted murder and was acquitted. The victim later dies and the defendant is then charged with murder and new evidence is retrieved from the victim's body. Because the crimes with which he is charged are different, the defendant is not protected. Great fucking movie by the way.

http://www.imdb.com/title/tt0488120/synopsis


New evidence and a different charge. New evidence and a substantially different charge, they may be retried. New evidence = death + autopsy. New charge = murder instead of assault. This is a substantially different charge with new evidence.


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:42 pm 

Joined: Tue Jul 03, 2007 3:31 pm
Archived Posts: 272
Location: 2700 miles from my law school.
conch republic wrote:
Assume Defendant is acquitted of attempted murder, and then Victim dies. Can D be charged with murder?

It seems like attempted murder would be a "lesser crime" than murder...so I would think double jeopardy would preclude trying D again.


But it seems like collateral estoppel would prevent the prosecutor from trying to re-establish the actus reus (which is the same in both crimes).


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:43 pm 

Joined: Sun Feb 08, 2009 10:54 pm
Archived Posts: 97
Joe Biden wrote:
madisonian wrote:
Saw a movie (Fracture (2007)) where the defendant was charged with attempted murder and was acquitted. The victim later dies and the defendant is then charged with murder and new evidence is retrieved from the victim's body. Because the crimes with which he is charged are different, the defendant is not protected. Great fucking movie by the way.

http://www.imdb.com/title/tt0488120/synopsis


New evidence and a different charge. New evidence and a substantially different charge, they may be retried. New evidence = death + autopsy. New charge = murder instead of assault. This is a substantially different charge with new evidence.


Keen observations by the Senator from Master Card.


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:43 pm 

Joined: Sat Aug 16, 2008 1:51 pm
Archived Posts: 302
Fifth amendment says only can't be put in jeopardy of life and limb for same offence (sic). So it would seem you could retry for murder. But good luck after an acquittal on the prior charge, which would likely have the same set of circumstances. If you couldn't convince a jury it was assault, it could be harder to prove it was murder. Of course, the prosecution could give it another go with the knowledge of where it screwed up the first time.


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:46 pm 

Joined: Tue Jul 03, 2007 3:31 pm
Archived Posts: 272
Location: 2700 miles from my law school.
smalltown wrote:
Of course, the prosecution could give it another go with the knowledge of where it screwed up the first time.


That is precisely the reason why double jeopardy is prohibited.


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:47 pm 

Joined: Wed Aug 27, 2008 11:33 pm
Archived Posts: 5720
smalltown wrote:
Fifth amendment says only can't be put in jeopardy of life and limb for same offence (sic). So it would seem you could retry for murder. But good luck after an acquittal on the prior charge, which would likely have the same set of circumstances. If you couldn't convince a jury it was assault, it could be harder to prove it was murder. Of course, the prosecution could give it another go with the knowledge of where it screwed up the first time.


Never rely on the text of the Constitution without case law to back it up. Without knowing what the Justice's interpretation of the text is, your opinion means nothing.


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:50 pm 

Joined: Wed Aug 27, 2008 11:33 pm
Archived Posts: 5720
conch republic wrote:
smalltown wrote:
Of course, the prosecution could give it another go with the knowledge of where it screwed up the first time.


That is precisely the reason why double jeopardy is prohibited.


Actually, the purpose of double jeopardy is to avoid harassment of the people, by the state.


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:52 pm 

Joined: Sun Feb 08, 2009 10:54 pm
Archived Posts: 97
http://answers.yahoo.com/question/index ... 928AAIU4ES


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 2:53 pm 

Joined: Tue Jul 03, 2007 3:31 pm
Archived Posts: 272
Location: 2700 miles from my law school.
Joe Biden wrote:
conch republic wrote:
smalltown wrote:
Of course, the prosecution could give it another go with the knowledge of where it screwed up the first time.


That is precisely the reason why double jeopardy is prohibited.


Actually, the purpose of double jeopardy is to avoid harassment of the people, by the state.



You mean harassment like, for example, if a prosecutor prosecuted someone, lost, figured out what he did wrong, and then tried to prosecute him again?


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 5:58 pm 

Joined: Wed Aug 27, 2008 11:33 pm
Archived Posts: 5720
conch republic wrote:
Joe Biden wrote:
conch republic wrote:
smalltown wrote:
Of course, the prosecution could give it another go with the knowledge of where it screwed up the first time.


That is precisely the reason why double jeopardy is prohibited.


Actually, the purpose of double jeopardy is to avoid harassment of the people, by the state.



You mean harassment like, for example, if a prosecutor prosecuted someone, lost, figured out what he did wrong, and then tried to prosecute him again?


More like, a prosecutor is pissed you fucked his wife, so he keeps charging you with public nuisance over and over.


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 Post subject: Re: Double Jeopardy Question
PostPosted: Fri Apr 24, 2009 5:59 pm 

Joined: Wed Aug 27, 2008 11:33 pm
Archived Posts: 5720
madisonian wrote:
http://answers.yahoo.com/question/index?qid=20080228101928AAIU4ES


This is an authority for what reason? I already post the correct answer.


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 Post subject: Re: Double Jeopardy Question
PostPosted: Sat Apr 25, 2009 1:54 am 

Joined: Fri Jan 18, 2008 5:36 pm
Archived Posts: 1534
.


Last edited by TTT-LS on Mon Jun 21, 2010 3:10 pm, edited 1 time in total.

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 Post subject: Re: Double Jeopardy Question
PostPosted: Sat Apr 25, 2009 9:13 am 

Joined: Fri Mar 27, 2009 2:55 pm
Archived Posts: 66
conch republic wrote:
Assume Defendant is acquitted of attempted murder, and then Victim dies. Can D be charged with murder?

It seems like attempted murder would be a "lesser crime" than murder...so I would think double jeopardy would preclude trying D again.


Under the Supreme Court's Blockberger decision, the federal constitution does not prohibit this since it is not the same "offense." However, murder is usually a state crime, and many states have constitutional provisions or statutes that provide higher safeguards. New York, for example, does go beyond this, but the Court of Appeals recently found that this scenario is allowable as an exception. People v. Latham, 83 N.Y.2d 223 (1994). http://caselaw.lp.findlaw.com/scripts/g ... invol=0233


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