Question about the Law and Double Jeopardy...just was watching Law & Order

[MrDingleDangle]

What happens if the judge throws something out of the original trial that would have convicted the defendent, but shouldnt have been thrown out...can they be retried? is there a way the prosecution can appeal a case because of a judges verdict? I assume there is but its so rare to be seen.

 

[axelfox]

From what I know, prosecutors can't appeal.

 

Originally posted by: axelfox
From what I know, prosecutors can't appeal.

they can, but only under certain circumstances...such as the judge being totally biased in one direction, also if there is a constitutional dispute anyone can appeal...there are others I am sure as well

 

[MrDingleDangle]

in this case there was an eye witness and half way through the prosecution, right before this witness took the stand...the defense challenged the lineup because they were all supposed to be wearing the same jacket in the lineup but 2 of the 5 didnt have leather on the cuffs...

and the judge threw out the eye witness...it was total bullplop...

so is the prosecution just screwed if this were to happen in real life?

 

Originally posted by: MrDingleDangle
in this case there was an eye witness and half way through the prosecution, right before this witness took the stand...the defense challenged the lineup because they were all supposed to be wearing the same jacket in the lineup but 2 of the 5 didnt have leather on the cuffs...

and the judge threw out the eye witness...it was total bullplop...

so is the prosecution just screwed if this were to happen in real life?

not always. The prosecution can appeal if they feel that they have a strong enough argument to say that throwing out that piece of evidence was in violation of due process...but generally speaking, the state doesnt appeal because it isnt worth their time and effort.

Also, dont believe everything on TV...highly inaccurate for the most part. Every once in awhile they will get something right.

 

[Ryan]

I don't have anything to add to this discussion, but...........

ONe thing I don't think people understand about double jeopardy laws is that double jeopardy is almost impossible to happen. Double jeopardy was set up so that if you were to kill your wife, and you were found guilty and punished, you could not be punished again after you had already been tried.

Most people have it in their heads that if you were to be charged with killing someone who faked their own death, then you were found guilty and did your time, that you could kill the person if they were still alive afterwards. It's untrue. If the plot of the movie Double Jeopardy were to happen in reality, Ashley Judd would have been charged with murder again.

 

good point, that reminds me...

It is NOT Double Jeopardy if the case is appealed by the state, and the higher court remands it back to the lower court for a retrial with a new set of rules

 

[Ryan]

Originally posted by: FallenHero
good point, that reminds me... It is NOT Double Jeopardy if the case is appealed by the state, and the higher court remands it back to the lower court for a retrial with a new set of rules

Yep, you can be tried in both state and federal courts

 

[MrDingleDangle]

thanks...i know the double jeopardy laws and that the TV of course isnt accurate...it just got me thinking because you rarely hear about it...

and im sure also its because judges dont throw out things unless there is no way it can come back and harm them....

but i was just kinda interested

 

[KenGr]

Originally posted by: rbloedow
I don't have anything to add to this discussion, but...........

ONe thing I don't think people understand about double jeopardy laws is that double jeopardy is almost impossible to happen. Double jeopardy was set up so that if you were to kill your wife, and you were found guilty and punished, you could not be punished again after you had already been tried.

Most people have it in their heads that if you were to be charged with killing someone who faked their own death, then you were found guilty and did your time, that you could kill the person if they were still alive afterwards. It's untrue. If the plot of the movie Double Jeopardy were to happen in reality, Ashley Judd would have been charged with murder again.

OK, but....

The reason for the double jeopardy criteria is so the state cannot keep trying you for the same crime until they get the result they want. The movie was BS only because there was no crime in the first place. If the person is killed later that's a different crime. (Effectively, the person was killed twice.)

Some countries have no restriction on this. The state can try you again and again until they are happy with the outcome. You can imagine the results. In the US, as I understand it, the only way to bring charges again is if an illegal act was committed in the original trial, for instance jury tampering, but I'm not sure about perjury. Do we have a lawyer in the house?

This is why the plea bargaining is so critical. If they try someone for murder and can't make it stick, there is no way to bring it back as manslaughter. Mistrials don't count - they can be retried. Also, you will find that the prosecution will sometimes ask that charges be dismissed without prejudice. That means they can retry later if they want. Of course, the defense would rather have it dismissed "with prejudice" but you wouldn't risk taking it to the jury.