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Suppose I were to kill someone and was charged with manslaughter, found not guilty, and more evidence surfaces, does double jeopardy prevent me from even being charged again for that action (the killing), or does it only protect me from the charge of manslaughter again?

David Siegel
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Paulemic
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2 Answers2

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Under U.S. law, double jeopardy prevents you from being charged with the same charge twice, and also from being charged with any offense which is a lesser included offense of the charged offense, or a charge so substantially similar that for constitutional purposes it amounts to the same crime. Basically, the test is whether a prior acquittal would be inconsistent with a new criminal charge.

For example, even though there is an additional element of the crime of murdering a postal officer to the crime of murdering someone on federal property, double jeopardy would probably bar a retrial of a murder on federal property case simply because the victim happened to be a postal worker and that element wasn't charged in the original indictment. This is because the acquittal of the first murder charge would almost always imply a jury determination that a murder didn't take place which would be inconsistent with a murder of a postal worker charge.

On the other hand, a trial on a murder charge would probably not bar, for example, a trial on a burglary charge (which at common law involved trespassing with an intent to commit a crime), even if the burglary charge arose from the same conduct. This is because an acquittal on a murder charge isn't necessarily inconsistent with the existence of a trespass, or with the intent to commit some crime other than the murder for which the defendant was acquitted.

But the exact way that the line gets draw is tricky and while what I have described is a good general summary of the cases interpreting the double jeopardy clause, it isn't a perfect one. This issue has been litigated many, many tines over the years, so there are a lot of cases that are squarely on point addressing specific fact patterns in precedents that are binding case law that are not always a perfect fit to the general principles. In these circumstances, the binding case law is going to control, at least until a court with appellate authority over the court whose case established the precedent in question decided to overrule a prior precedent from the lower court, or in the case of U.S. Supreme Court precedents, until the U.S. Supreme Court revisits one of its own prior precedents as wrong decided or wrongly interpreted, which happens now and then, although it is a rare event.

ohwilleke
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    now what if the person was acquitted for the FEDERAL murder charge because the jury determined that the murder, though happening, didn't happen on federal property. Could then the other charge of murdering a postal worker (or a simple charge of murdering someone in the correct jurisdiction) be brought instead? Inquiring minds want to know :) – jwenting Jan 22 '21 at 11:38
  • Now how would you classify the notorious case of the O.J. Simpson trials, where the first criminal trial found him not guilty of murder, but the 2nd civil trial found him guilty on wrongful death charges? How is "wrongful death" not directly overlapping with "murder"? – Darrel Hoffman Jan 22 '21 at 14:23
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    @DarrelHoffman I believe DJ only applies to criminal cases, not civil cases. The standard for criminal conviction (beyond a reasonable doubt) is much higher than civil judgements (preponderance of evidence). – Barmar Jan 22 '21 at 14:44
  • I don't think the OJ situation is even particularly uncommon. – Barmar Jan 22 '21 at 14:45
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    @Barmar I think the key is "be twice put in jeopardy of life or limb"... Since in a civil court you generally don't risk jail/physical punishment. – user3067860 Jan 22 '21 at 17:22
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    @DarrelHoffman A finding that OJ Simpson could not be shown beyond a reasonable doubt to be criminally responsible for someone's murder does not imply that he cannot be shown by a preponderance of the evidence to be civilly liable for that person's death. The jury may even have felt that OJ was much more likely to be guilty or murder than innocent, they just weren't convinced beyond a reasonable doubt. – David Schwartz Jan 22 '21 at 18:11
  • And there are also often technical issues. Evidence or testimony might be precluded in a criminal trial, but allowed in the civil trial. It was pretty clear to most people that OJ did it, but the jury was required to base their decision on only the evidence that was allowed by the judge. – Barmar Jan 22 '21 at 19:36
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    @DarrelHoffman Civil cases are brought by private citizens, not the government. – Paulemic Jan 25 '21 at 23:25
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    @Paulemic Strictly speaking, the government can bring both civil and criminal cases. – ohwilleke Jan 26 '21 at 01:32
  • @Paulemic Doesn't change the fact that O.J. was effectively tried twice - with opposite outcomes - for the same crime. It's just weird that we can be in a situation where people basically know he did it, enough to charge him guilty and penalize him, but can't quite prove it enough to put him away for it. – Darrel Hoffman Jan 26 '21 at 13:43
  • @DarrelHoffman OJ only faced criminal charges twice. Double jeopardy is a doctrine that applies only to exposure to criminal penalties. It isn't weird. It is actually desirable. If we are absolutely sure that someone committed a crime, we can incarcerate them. If we think it is more likely than not that they did something, but aren't absolutely sure, we can make them pay civil compensation. If we have neither, society can arrest someone and detain them pending a trial on probable cause, but can't have any "final" penalty. The more sure we are the more decisively we can act. – ohwilleke Jan 27 '21 at 19:49
  • @DarrelHoffman That's what happens when you have a jury of your peers. Laymen have the benefit of being an effective representative of the public, but are neither lawyers nor always wise. – Paulemic Feb 12 '21 at 07:33
  • @DarrelHoffman Wrongful death is not a crime; it is a tort. Accordingly, OJ was not found guilty in the second trial but civilly liable. – phoog Jun 15 '23 at 06:04
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Double Jeopardy, in the US, protects against a second trial for the same action. It is prohibited by the 5th Amendment to the US Constitution, which reads (in pertinent part):

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

As the Wikipedia article says:

As described by the U.S. Supreme Court in its unanimous decision concerning Ball v. United States 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial".

However, when an action is a crime under both US Federal law and State law, a person may be tried separately by both the state and federal governments, and Double Jeopardy is not a bar to such a second trial.

Cases where added evidence comes to light after a trial are very much included in the double jeopardy bar, and the first trial (whether or not it resulted in a conviction or even a final verdict) prevents the second from being held.

At Federal law, Ashe v Swenson, 397 U.S. 436 (1970) applied issue estoppel to prevent a different offence being subsequently prosecuted for the same events.

As The Wikipedia article on the case says:

The guarantee against double jeopardy ... provided that where the defendant was acquitted of robbing one victim, the government could not prosecute the criminal defendant in a second trial for a different victim in the same robbery.

David Siegel
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    The first sentence misses 4 crucial words: by the same suzerain. Someone could be charged and tried by 3 states and the federal and some native American nations at the same time - and all are separate souzerains. – Trish Jan 22 '21 at 16:09
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    @Trish, I mention that in the paragraph starting 'However". As that is a fairly rare exception, I think it is better to state the general principle mo0rew clearly first. This also avoids the use of the unusual and indeed archaic word "suzerain". – David Siegel Jan 22 '21 at 16:18
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    @Trish: Where did those words come from? The Fifth Amendment doesn't have them. – Ben Voigt Jan 22 '21 at 17:37
  • @BenVoigt the fact that amendment no5 does not stop a STATE or three or any other sovereign state from charging you. – Trish Jan 22 '21 at 17:53
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    @BenVoigt The "double sovereign" exception does not appear in the text of the amendment, it has been applied by court interpretation. I understand that some scholars have criticized it, but it is the current law as applied. – David Siegel Jan 22 '21 at 18:08