1. Ryan Elder
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    Ryan Elder Contributing Member

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    Does anybody know how the double jeopardy law works for my story?

    Discussion in 'Plot Development' started by Ryan Elder, Jul 31, 2015.

    For my story, I think I may have come across a possible plot hole, but it may not be depending on how the law works. I read that double jeopardy means that a defendant cannot be charged for the same crime twice, following an acquittal or conviction, according to this article.

    https://en.wikipedia.org/wiki/Double_jeopardy

    However, if the judge in the case decides to drop the charges before it's time for a jury to make it's verdict, would it still be possible to try the defendant for the same crime, since it never got to a verdict yet?

    According to the research I did, it turns out there has to be a verdict before the law applies. This creates a plot hole, because the villain plans on contaminating the case when he is in court. However, if the law does not apply in this case, then there is no reason for him to wait till it goes to court. He can contaminate the case at anytime prior.

    But for my story to work, I need him to contaminate at the trial, which means he needs a reason to wait to the trial. Is their any legal benefit to waiting till the trial, if that makes sense?
     
    Last edited: Jul 31, 2015
  2. Bjørnar Munkerud
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    Bjørnar Munkerud Contributing Member

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    Perhaps you'd be better suited to post in the research section. The only thing I can think of as a possibility for your story is to put it in a setting where double jeopardy isn't a thing. You could set it in the future (it could just be a couple of years to be sufficiently believable in my mind), have there be some foul play or just not mention what your setting is and make the Reader assume the story is set somewhere doub le jeopardy doesn't exist. You could just deliberately ignore the plot hole as well. I wouldn't say it's a big or annoying one, unless you're writing a story that's meant to be directly applicable to real life.
     
  3. Lea`Brooks
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    As far as I'm aware, double jeopardy only works when there is a conviction. For example, if John is accused of killing his mother but is found not guilty, they can't try him again for killing his mother, even if he admits it. But, if a judge declares a mistrial, the prosecutors can get their shit together and try again, depending on the reason. If it's a hung jury, there's a good chance they won't grant a retrial.

    Here's a good website that mentions dismissals:

    When Double Jeopardy Protection Ends
     
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  4. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    There doesn't always have to be a verdict. Jeopardy attaches when the jury is sworn or, in a bench trial, when the first witness is sworn. If there is severe misconduct by the prosecution that leads to a mistrial, the double jeopardy prohibition can prevent a retrial even though there was no verdict.

    It's important to keep in mind that in the U.S. the states and federal government are dual sovereigns, and double jeopardy does not necessarily prevent one sovereign from trying a person after he has been tried by another and convicted or acquitted. In other words, after a state trial, another state or the federal government could also try the person.

    It goes back to a rather archaic notion from English common law that a crime committed was a crime against the sovereign.
     
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  5. Shadowfax
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    Shadowfax Contributing Member Contributor

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    So, in theory, it's possible to be tried and convicted in every state in the union, and by the federal government too?
     
  6. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I suppose in theory, but each state would have to have jurisdiction over you somehow. Ohio can't try you for crimes in New York just because they feel like it.
     
  7. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    It seems strange, but people forget that the States were supposed to be more like little countries than they are today, with a relatively weak federal government binding them together.

    The dual sovereignty idea is also why a State court is not bound by a federal court decision on an issue, even when the federal court sits in the same state, and even when it's a federal issue being decided. They're only bound once the Supreme Court decides. That idea blows a lot of people's minds, and there has been a lot of misreporting of it in the press over the past year or more.
     
  8. Shadowfax
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    Shadowfax Contributing Member Contributor

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    Perhaps something like transporting a minor across a state line?
     
  9. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Could be. I'd have to look at elements of the crime. Maybe kidnapping and false imprisonment type charges when you transport the victim through multiple states. Maybe fraud conducted online with victims in multiple states, etc.
     
  10. AspiringNovelist
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    AspiringNovelist Contributing Member

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    Interesting legal concept. The DC Sniper for example faced trials in Virginia, Maryland, and the District of Columbia. (Maybe federal charges too, but I don't recall). Having said that, it's my opinion that each State sought justice for a citizen/victim of that State...meaning - they weren't just piling on.

    To your legal question (and I'm not a lawyer) I'd suspect there would need to be a victim or victimization in each State the kidnapper and minor crossed. Perhaps the kidnapping took place in Maryland. The kidnapper brutalized the same victim in Virginia. The kidnapper sexual assaulted the same victim in North Carolina. The kidnapper murdered the same victim in South Carolina. In that scenario, I could see each State wanting a bite at the apple, but they only get one bite each.

    And, I suspect, any failed trial would be brought up as precident for the defendant in any pending cases. And, I suspect, a successful trial would be brought up as precident for the State/prosecution in any pending cases.

    In addition, the kidnapper could face federal charges too.

    Finally, I'm of the mindset that a Double Jeopardy result in one State does not limit additional/congruent trials by prosecutors who have legitimate cases in other States. I've always understood Double Jeopardy as legal stop to 'witch hunts'.
     
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  11. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. I have not found this yet in my research. So far, I keep reading that it has to reach a verdict to legally count. But even if it doesn't, is it still a plot hole in my story? I was told by a couple of readers that they did not understand why the defendant waits till trial, to show the court that the evidence against him is tainted (thereby getting a mistrial), when he could have just showed them it was tainted right after he was arrested, or even at a hearing, long before the trial the started. The reason why I want to set it at the trial, is so other witness characters can say their things on the stand, which develops the story more. It just kills multiple birds in one stone, to set it at the trial. Plus a lot of other things happen before the trial, that I need to happen chronologically to get to the plot twists and turns I want.

    So do I have to have so the defendant shows that the evidence was tainted immediately and not wait until trial?

    One story that comes to mind where the villain had a somewhat similar idea, to wait till the trial, to show the evidence was tainted was the movie Fracture (2007). In that movie the villain purposefully tainted the evidence in order to get away with murder, which is kind of a similar idea to mine. In that movie he waited all the way till trial to do so, when he could have even done it, after he was arrested for that matter, instead of waiting. In that movie, he also could not have been retried again using double jeopardy as the reason.

    So is that movie full of holes, which I need to avoid, or can my story still be believable for waiting until trial? If double jeopardy cannot be used, to wait until trial, is there another reason I need for explanation?
     
  12. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    If the defendant has evidence that proves his innocence and doesn't show it until trial, he should have a good reason. Otherwise, why would anyone want to go through a criminal trial, knowing they could have avoided it? Just having him go through trial so you can expand the story by having witnesses testify isn't going to work well for many readers, I suspect, because it doesn't make sense if the guy could have avoided trial in the first place.

    That said, there could be reasons:

    Jeopardy attaches once trial has begun, and before a verdict, but can detach depending on the circumstances. My understanding is that if jeopardy has attached and the case is dismissed for insufficient evidence, double jeopardy applies and the government can't retry the defendant. Other reasons for dismissal may or may not trigger double jeopardy protections, and you'd have to look at them in relation to exactly what is going on in your story.

    But even if there is no double jeopardy, does the villain have to worry about being tried again? Is there other evidence out there that would justify bringing a second trial? Are there political considerations that might prevent one?

    Also, you could have the villain become aware of the problems with the evidence once the trial has already started, if you can figure out a way to explain why he only becomes aware of it at that time.
     
  13. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Oh, also, keep in mind that prior to trial there is a discovery period where both sides are obligated to turn over certain information about the case to the other side. I suspect that if a criminal defendant deliberately withheld evidence in an attempt to wreck the trial and then be protected by double jeopardy, courts might be reluctant to grant the defendant double jeopardy protection. For a lot of this sort of thing, courts look at behaviors of the parties, whether there is dishonesty, purposeful conduct, and so on. A court might very well say that double jeopardy doesn't apply if it were found out that a defendant withheld information prior to trial solely for the purpose of trying to have jeopardy attach and then get double jeopardy protection as a result of a mistrial.

    That said, I don't know offhand if there's ever been a case on that.
     
  14. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. But the defendant has the right to remain silent though. If he decides to give up that right and the trial and give a piece of information that he did not give before, can he be penalized for it, since it was his constitutional right to keep his mouth shut in the first place?
     
  15. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    The defendant's Fifth Amendment right to remain silent is a right not to incriminate oneself, or to be forced to be a witness against oneself. If the defendant has exculpatory evidence, then that evidence wouldn't incriminate him, so my guess is that failing to produce it in discovery wouldn't be protected by the Fifth Amendment. Someone who does criminal law might have more insight into it, but if the evidence isn't incriminating I don't see a basis for a Fifth Amendment claim.
     
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  16. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. I thought that the right to remain silent was under all circumstances for the defendant though, and that it was the court's job to prove him guilty. I didn't think that at any time it was legally required for him to prove his innocent and thought that it was all the courts responsibility to prove him guilty no matter what he knows.

    The movie Fracture made the whole thing work though.

    1. The defendant waited until trial, and no one claimed it was a plot hole in the writing stage.
    2. The villain was able to come out with the exculpatory evidence at trial, without being penalized for it.
    3. He got off with double jeopardy.

    I don't necessarily need the third one as long as I can make the first two work, but what makes my situation not usable compared to Fracture's story?
     
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  17. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Movies often get the law (and other things) wrong. If the law won't fit with the story they want, they'll usually go with the story they want. So I wouldn't just assume that Fracture provided the right interpretation of the law. And courtroom dramas rarely take you through the discovery process, or an appeals process that would later determine errors at the lower court level.

    Similarly, you have a lot fair amount of leeway to play with how the law works, and most readers aren't going to notice or care. If you want to make sure you're entirely accurate as to how a sequence of events would likely play out, then it is worth thinking about all of this stuff and doing some looking at the case law to see how it might play out in real life.
     
  18. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. I was told that by the readers as well, that I skip over the discovery process too much. I also do this to save on length and try to have a proper structure. Do you think that maybe the other readers are looking for flaws too much, cause I asked them what they thought, and maybe it's okay to skip over a large portion of the discovery process?

    There is one scene where the cops are interrogating the suspect, since I pretty much have to show that to show that the he is not talking and they decide to press charges. I think that part is necessary, but this could be why the readers are asking, why didn't he come out with it then?

    I have it written so far that when the judge asks the defendant on the stand 'Why didn't you just give us this information before?". The defendant shrugs and and answers "It was my right to remain silent then, and it was this court's job to prove me guilty which it has failed to do". He says it in a smug way just for spite, but readers have a problem with this, and the judge has no choice but to do let him go?

    Also in my script the villain is charged with three crimes, and is being tried for each of them at the same time. It's common for a murderer who killed a few people to be charged with all of them at the same time, even if the crimes happened at different times.

    If I am to be realistically accurate, I would have to write it so that the villain is charged with one crime, charged, then gets off in the discovery process, then he would go out commit a new crime, and then repeat that same formula two more times. I could write it that way but it would make the story quite a bit longer, and it would probably come off as repetitive to the reader, since the villain used the same plan three times in row, rather than using it once for all the crimes at once.

    Does that make sense? Is doing it the more realistic way better, if it fills the holes better?
     
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  19. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I don't think I'd go that route, and I wouldn't dwell on discovery. I've been involved in discovery for the last 3 months for a case in federal court, and it's boring enough being involved in it, let alone reading about it :)

    I think you could just play with your original idea a bit, maybe do some additional looking into it. Maybe the evidence he brings at trial isn't something he has to disclosure in discovery. Maybe it wasn't available during discovery. Maybe there's no way for anyone to know the evidence was available prior to trial. Maybe it's not documentary or other physical evidence, but testimonial evidence he wants to present. Those are just ideas that come to mind. I don't practice criminal law, so this is based on my recollection and a couple of quick searches.

    All you need the reader to do is suspend disbelief, and I think that takes just enough research that you have something that, on the face of it, is plausible, even if it might come out differently in a real world trial.
     
  20. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks, but since the evidence was part of his plan to get away with his crimes, to begin with, it is definitely available during discovery. No one else know's that the evidence is available until trial accept for his lawyer, who he disclosed it too. Would the lawyer be in trouble for waiting until trial to bring it up? It is testimonial evidence, but that still means he can disclose it in discovery.
     
  21. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    As a general rule, if a lawyer knowingly withholds something in discovery that should have been produced, then the lawyer can get in trouble. Lawyers also can't put on evidence that they know to be false. If it is testimony from the defendant, I don't know that you'd have to disclose it in discovery. Again, the caveat here is I'm not a criminal defense attorney, so someone who is can give you a better answer or tell me if I'm wrong, but a criminal defendant doesn't have to take the stand at all, and if he doesn't take the stand, that fact can't be used against him. However, the Supreme Court has ruled that criminal defendants have a right to testify. So, if I were the criminal defendant here, I probably wouldn't tell my lawyer about the evidence if I thought he might have to disclose it, and since it is testimonial evidence I'd wait until trial to tell my attorney that I've decided to take the stand after all. Then I'd spring the surprise in my testimony.

    There may be procedural issues with the approach that I'm unaware of, but even legal thrillers written by lawyers play a little loose with those kinds of thing to serve the purposes of the story.
     
  22. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Can the reason you suggest be the reason for my character. The reason that you wait till trial to spring it as a surprise? As for the lawyer not disclosing it prior, I will have to think of a reason perhaps. I could write it so that he could say that this client did not tell him of it, but there is evidence of his actions that says otherwise, although it's only provable by hearsay though, if that helps.
     
  23. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Sure, you can use whatever reason you like :) And its important to keep in mind that it might not have to be disclosed by the defense. The defense in a criminal case only has to disclose certain evidence - you could look into whether this would qualify. And, yeah, if no one can prove that the lawyer knew about it ahead of time, maybe the lawyer withholds it. Lawyers aren't all ethical.
     
  24. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. The MC knows that the lawyer knew about it from a prior conversation. However, even if the MC says it on the stand, the lawyer could say that the MC is just lying to save face, and the judge would not know who to believe. Is this all okay, though, and the reader's can still suspend disbelief, with what I have said?
     

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