Suppose Briscoe Cole is found not guilty of murder in a fair jury trial. Later, evidence comes to light that B

Question

Suppose Briscoe Cole is found not guilty of murder in a fair jury trial. Later, evidence comes to light that Briscoe may have been guilty. Under the _______ principle of the Fifth Amendment, Briscoe can't be tried again for that same crime.

A. impeachment

B. grand jury

C. due process

D. double jeopardy

Answer 1

double jeopardy

Answer 2

Double jeopardy.

Answer 3

C assuming that the charge was murder in the specification. He could be charged with a different crime associated with the same incident as long as it is not a lesser included charge

Answer 4

D. double jeopardy

The phrase "double jeopardy" stems from the Fifth Amendment to the U.S. Constitution, specifically the words "twice put in jeopardy." The full clause is "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This clause is intended to limit prosecutorial abuse by the government in repeated prosecution for the same offense, as a means of harassment or oppression. It is also in harmony with the common law concept of res judicata, which prevents courts from relitigating issues and claims that have already been the subject of a final judgment.

There are three essential protections included in double jeopardy: protection from being retried for the same crime after an acquittal; protection from retrial after a conviction; and protection from being punished multiple times for the same offense.

This law is occasionally referred to as a legal technicality, because it allows defendants a defense that does not address whether the crime was actually committed. For example, were police to uncover new evidence conclusively proving the guilt of someone previously acquitted, there is little they can do because the defendant may not be tried again (at least, not on the same or substantially similar charge) Fong Foo v. United States, 369 U.S. 141 (1962).

Though the Fifth Amendment initially applied only to the federal government, the Supreme Court has ruled that the double jeopardy clause applies to the states as well, through incorporation by the Fourteenth Amendment (see Benton v. Maryland).

Jeopardy attaches in a jury trial once the jury and alternates are impaneled and sworn in. In a non-jury trial, jeopardy attaches once the first evidence is put on, which occurs when the first witness is sworn.


[edit] Exceptions to double jeopardy
As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause, because a mistrial ends a trial prematurely without a judgment of guilty or not guilty. Cases that have been dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for limited prosecutorial appeals from these orders. A re-trial after a conviction has been reversed on appeal also does not violate double jeopardy, because the judgment in the first trial has been invalidated. In both of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.

There are two exceptions to the general rule that the prosecution cannot appeal from an acquittal. If the earlier trial is proven to be a fraud or scam, double jeopardy will not prohibit a new trial. In Harry Aleman v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al., 138 F.3d 302 (1998), an appeals court ruled that a man who bribed his trial judge and was acquitted of murder was allowed to be tried again, because his bribe prevented his first trial from actually putting him in jeopardy.

The other exception is that prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding the verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict, and so would not place the defendant at risk of another trial.

The Supreme Court has also upheld laws allowing the government to appeal criminal sentences in limited circumstances (such as 18 U.S.C. § 3742(b)). The Court ruled that sentences were not accorded the same constitutional finality as jury verdicts under the double jeopardy clause, and giving this right of appeal also did not put the defendant at risk of a succession of prosecutions.

Double jeopardy is also not implicated for separate offenses or in separate jurisdictions arising from the same act. For example, in United States v. Felix (1992), the Supreme Court ruled: "a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes."

As another example, a state might try a defendant for murder, after which the federal government might try the same defendant for a federal crime (perhaps a civil rights violation or kidnapping) related to the same act. For example, the Los Angeles Police Department officers charged with assaulting Rodney King in 1991 were acquitted by a county court, but some were later convicted and sentenced in federal court for violating his civil rights. Similar techniques were used for prosecuting racially-motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights Movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries thought to be racist or sympathetic to the accused in local courts.

The "separate sovereigns" exception to double jeopardy arises from the unique nature of the American federal system, in which states are considered to be sovereigns with plenary power that have relinquished a number of enumerated powers to the federal government. Double jeopardy attaches only to prosecutions for the same criminal act by the same sovereign, but as separate sovereigns, both the federal and state governments can bring separate prosecutions for the same act. For example, Timothy McVeigh was executed by the federal government for murdering eight federal employees with a bomb, but could also have been tried in state court for murdering numerous other persons in the same explosion.

Double jeopardy also does not attach if the later charge is civil rather than criminal in nature, which involves a different legal standard. Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though res judicata operates within the civil court system). For example, O.J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims.

If the defendant happened to be on parole from an earlier offense at the time, the act for which he was acquitted may also be the subject of a parole violation hearing, which is not considered a criminal trial. Since parolees are usually subject to restrictions not imposed on other citizens, evidence of actions that were not deemed criminal by the court may be re-considered by the parole board, which could deem the same evidence as proof of a parole violation. In addition, like civil trials parole violation hearings are also subject to a lower standard of proof so it is possible for a parolee to be punished by the parole board for criminal actions that he was acquitted of in court.

The protection afforded by double jeopardy is also only a clause which protects individuals from being punished more than once for the same or similar felony charge. The U.S. Supreme Court has never given the misdemeanor offenses protection under the double jeopardy clause. For instance, a public intoxication charge by a city is subject to a separate punishment by a university or other institution without these punishments being an infringement upon those rights afforded by the 5th Amendment and 14th Amendment to the United States Constitution.

In the U.S. military, courts martial are subject to the same law of double jeopardy, as the U.S. Constitution is the supreme law of the military, superseding the Uniform Code of Military Justice. Nonjudicial punishment is considered akin to a civil case and is subject to lower standards than a court martial, which is the same as a court of law. However, if a nonjudicial, or NJP proceeding fails to produce conclusive evidence, the commanding officer (or ranking official presiding over the NJP) is not allowed to prepare the same charge against the military member in question. In a court martial, acquittal of the defendant means he is protected permanently from having those charges reinstated.

The most famous U.S. court case invoking the claim of double jeopardy is probably the second 1876 murder trial of Jack McCall, killer of Wild Bill Hickock. McCall was acquitted in his first trial, which was ruled illegal because it took place in an illegal town, Deadwood, then located in South Dakota Indian Territory. At the time, Federal law prohibited whites from settling in the Indian Territory, but this did not stop them from coming in droves after the discovery of gold in the area. McCall was retried in Indian court, convicted, and hanged.