Reality Check: ‘Double Jeopardy’ doubly flawed

Share on facebook
Share on twitter
Share on linkedin

In the 1999 movie Double Jeopardy, Ashley Judd’s character is in prison after being convicted for murdering her husband – who she later learns is still alive and framed her for murder to run off with her best friend, as opposed to hiring a divorce attorney like most people would do.

A lawyer-turned-felon advises Judd’s character that she should do her time in prison and then kill her husband once she’s released because she would not face criminal action for committing the same crime twice under the double jeopardy clause of the Fifth Amendment.

“You can walk right up to him in Time Square, put a gun to his head and pull the fucking trigger and there’s nothing anyone can do about it,” she tells her.

Later in the movie her probation officer, who used to be a law professor, confirms she could kill her husband in the middle of Mardi Gras to the same result.

The double jeopardy and the Fifth Amendment, in general, is awesome because it prevents a government from forcing a person to stand trial multiple times for the same offense. However, it would offer Judd’s character little protection if she were to murder her husband in the middle of Time Square or Mardi Gras.

(Spoiler alert: she shoots him at the end of the movie in what would probably be self-defense, but that’s a different topic altogether.)

An Overview

The double jeopardy clause comes from the Fifth Amendment, which states, in part:

“…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;…”

It does allow for people to be charged with multiple offenses from the same incident, but not multiple times for the same offense.

Simply put, a person who walks up to another person and pulls a gun, takes their watch and hits them in the head with the weapon before running off has probably committed at least robbery and battery, if not other crimes. That person could be charged with both offenses in a single trial, as well as single offenses in separate trials.

Suppose that person is tried for both robbery and battery and found not guilty, the government is barred from charging that person with robbery again in subsequent trials. Our founding fathers did not want the government to be able to continue to prosecute someone over and over until they reached a verdict it was happy with. The clause limits the government to one shot at attempting to prosecute suspected criminals (hung juries and mistrials would be an exception).

What is protected

The clause specifically states, “life or limb.” Fortunately, the Supreme Court has expanded the clause’s protection to criminal proceedings that aren’t for capital offenses. This includes felonies, misdemeanors, and juvenile-delinquency adjudications. It does not protect money. A person can be sued in both criminal and civil court for the same incident, which most people remember from the O.J. Simpson trials. The government can also bring civil or administrative charges after prosecuting in criminal court for the same act.

The reason for this is that civil proceeding focus primarily on money and returning the injured party to a whole state. Criminal proceedings focus on punishment and deterrence.

For example, suppose George Washington comes onto your property and cuts down your cherry tree. The state could prosecute him for trespassing and you’d still be able to proceed after him to recover the value of your tree. Suppose he cuts down a tree on federal land and violates an Environmental Protection Agency (EPA) order in the process and drives a truck to the tree and destroys half an acre of the orchard in the process. The government could prosecute him for trespassing and the EPA could come after him for any EPA violations and fines.

When does the double jeopardy attach?

Jeopardy attaches during a jury trial when the jury is empaneled, or selected. In criminal cases without a jury, jeopardy attaches when the first witness is sworn. In juvenile-delinquency adjudications, it attaches when the court first hears evidence.

If the defendant enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.

Who does double jeopardy protect you from?

The double jeopardy clause protects you from a government or sovereignty. This is significant because we are generally subject to the laws of at least two governments: state and federal. (I’m not including tribal lands in this analysis.)

It’s possible to face both federal and state charges for actions committed during a single incident. For example: if you steal a car in Wyoming, kidnap someone else in Idaho and drive them to Texas, the state of Wyoming could prosecute you for stealing the car and the federal government could prosecute you for bringing the kidnapped victim across state lines, which is a federal offense. The state of Idaho could also prosecute for the kidnapping since it occurred there in violation of state laws.

What counts as the same offense?

This is one of the more litigated and discussed areas in the clause. Essentially, one offense is the single instance of committing the crime.  You can commit multiple offenses at the same time in a single act, which makes this a confusing concept. In an earlier example, someone pulled a gun on someone, took their belongings and then hit them. In that case, they could be charged with both robbery and battery but after the robbery trial was over, they would not be able to be charged with burglary and forced to face a new trial.

The Verdict

Judd’s character faces two huge hurdles to the double jeopardy clause she would not be able to overcome had she carried out a plan to kill her husband.

First, the killing would have been a different offense committed at a different time than the charge she was convicted of. The question becomes, “How could you be convicted of killing the same person twice if you were convicted of killing them the first time and murder means they are dead?” This is the entire premise of the movie.

But think about it outside the context of murder, which is often times more final than other crimes. Think about it in terms of robbery. Suppose you rob someone on Monday at 6:30 p.m. coming out of a bank. You get convicted and sent to prison and later released. Then you rob the same person eight years later at 6:30 p.m. coming out of the same bank.

Do you think that you’d be able to get away with the second robbery because you already went to prison for committing the first offense? People are going to say, no, that’s silly. You can’t keep robbing the same guy over and over again and not get in trouble just because you got caught the first time.

It would be the same in this instance. She would be legally committing a different murder by killing her husband who had not actually died the first time. She could be prosecuted for that crime. The clause would protect her had she been found non-guilty the first time from being prosecuted again for the first “murder,” but not a subsequent act.

If she was to kill her husband and be convicted of his murder the second time her lawyer should ask for credit for time served from the first sentence in hopes of keeping her out of prison, through she’d still have the conviction on her record. She could also ask for a jury trial and challenge them to send her back to prison after serving time for a crime she did not commit. It’s possible the jury could feel sorry for her and understand why she killed him and find her not guilty, but that would be a risky strategy. A good prosecutor would also try really hard to find a way to keep evidence of that conviction out of court.

Second, she would face a huge problem if she were to kill him in Time Square or the middle of Mardi Gras because she was convicted in Washington and the clause protects her from subsequent prosecution by the same government.

The states of New York and Louisiana would basically say, “We don’t care that you were prosecuted for this crime in Washington. That was the state of Washington prosecuting you. Any protection you have for that would be against the Washington government, not us. Go directly to jail. Do not collect $200.”

Bonus fact: It is possible to be convicted of killing the same person twice in two states. In Heath v. Alabama, 474 U.S. 82, 106 S. Ct. 433, 88 L. Ed. 2d 387 (1985), the defendant committed murder in the state of Alabama and then took the body to Georgia, where officials found it. Both states prosecuted Heath and convicted him of murder for the same action, and the U.S. Supreme Court allowed the convictions to stand.

More to Explore

TRICARE After Divorce

Can I keep TRICARE after I get divorced? In most situations, you will not be able to keep TRICARE health insurance coverage

Benefits of Hiring a Divorce Attorney 

Divorce is often associated with feelings of failure, regret, and resentment. However, the end of a marriage doesn’t have to be filled