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Based on a discussion in this comment thread.

In the movie Fracture, a man shoots his wife. She ends up in a coma. Meanwhile, the man gets charged with attempted murder. Due to a technicality, a lot of the evidence of the prosecution is inadmissable, leaving them without any real evidence. Furthermore, they are missing a murder weapon, which would 'seal the deal'.

Because of this, the man is acquitted of attempted murder and let go. He then takes the required legal action to get the hosptial to pull the plug on his wife, killing her.

After all of this, the prosecution manages to find the murder weapon and proceeds to charge the man with murder, because the wife is now dead.


Is this realistic? The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact.

3 Answers 3


Is this realistic?

Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system.

The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact.

Mostly, this is an issue of causation and not double jeopardy.

From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over.

Causation Issues

Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death.

For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her.

While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated.

When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death.

Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that.

Collateral Estoppel Issues

Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case.

Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her.

In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present.

Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established.

  • Thanks for this answer, and thanks for making this understandable for a layman like me. So if I understand correctly, if he was acquitted by proving his innocence, rather than by lack of condemning evidence, he would have been protected right?
    – JAD
    Commented Oct 12, 2017 at 7:32
  • @JarkoDubbeldam Potentially. This is a very fact rich, context specific area.
    – ohwilleke
    Commented Oct 12, 2017 at 9:11
  • 1
    "An acquittal does not mean that every element of the prior criminal charges was found not to be present." - No, but it means that at least one element was found to not be present, and that matters.
    – D M
    Commented May 3, 2018 at 16:07
  • @DM No it doesn't. An acquittal means that at least one element of the prior criminal charges was not proved beyond a reasonable doubt at trial. This is quite different than a finding that an element of the crime actually did not happen. Hence, for example, the fact that OJ Simpson was acquitted of criminal charges that he murdered his wife because those charged were not proved beyond a reasonable doubt, is not inconsistent with the fact that in a civil wrongful death proceeding brought by his late wife's family, O.J. Simpson was found to have murdered her by a preponderance of the evidence.
    – ohwilleke
    Commented May 3, 2018 at 16:14
  • @ohwilleke But that's a different evidence standard, and noncriminal. Certainly they couldn't have charged him with attempted murder after the acquittal on the grounds that it was a different crime. Anyway, I'll post an answer with what I could find.
    – D M
    Commented May 3, 2018 at 16:18

I do not believe they could do this legally.

First, not committing the crime is not an element of attempt. In other words, if you have murdered someone (under traditional murder laws), you have necessarily also attempted to murder them. See, for that proposition, United States v. York, 578 F. 2d 1036 - Court of Appeals, 5th Circuit 1978.

Therefore, every court, not otherwise bound by statute, that has considered the matter in recent years has refused to require that a defendant be acquitted of an attempt because he was guilty of completing what he had set out to do.

Second, see Morey v. Commonwealth, as quoted in the 1889 case Nielsen (emphasis mine):

A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other."

If you put these together, it becomes clear that you cannot prosecute someone for both murder and attempted murder in separate trials, because the evidence required to support a conviction of murder would be sufficient to warrant a conviction of attempted murder. (You can charge both offenses in the same trial, but even then they can only be convicted of one or the other.)

If the jury found him not guilty of attempted murder, that amounts to an acquittal of the state's proposition that he attempted to kill his wife, so they can't charge him again with something that requires him to have attempted to kill his wife. They might still be able to prosecute on a felony murder charge, since that doesn't require him to have attempted to murder his wife, but that seems like it's stretching it.

  • "if you have murdered someone, you have necessarily also attempted to murder them." As you note, this is usually true, but not in every fact pattern. For example, you can be guilty of the crime of felony murder without being guilty of the crime of attempted murder.
    – ohwilleke
    Commented May 3, 2018 at 16:49
  • I had already mentioned felony murder at the end, but it doesn't hurt to clarify at that spot I guess.
    – D M
    Commented May 3, 2018 at 16:51
  • The more important point relative to the fact pattern in the question is that the acquittal of the attempted murder charge was not necessarily on the merits which is must be to have preclusive effect, since it was based upon the suppression of evidence rather than a jury finding that the evidence did not support a conviction. Since the charges are different, the issue is not true "double jeopardy" but the collateral estoppel effects that double jeopardy constitutionally requires be provided, which is much mushier.
    – ohwilleke
    Commented May 3, 2018 at 16:53
  • Now wait. If the jury acquitted him, that was necessarily "on the merits", regardless of whether some evidence was suppressed (or inadmissible, or simply not presented.) The jury doesn't decide suppression issues; the judge does. The jury decides guilt based on the evidence provided. It's the prosecutor's responsibility to make sure sufficient admissible evidence is presented.
    – D M
    Commented May 3, 2018 at 17:42
  • 1
    If the judge actually acquitted him, that counts. If it was a dismissal, then yeah, it depends, but that doesn't seem to be the (fictional) case here.
    – D M
    Commented May 3, 2018 at 17:56

Yes, in the movie, the judge said he was acquitted of the charges. I am not a lawyer and never went to law school, but, to me, it looks like the second indictment does not pass the Blockburger test: “Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”

  • It's impossible to tell what your response to the question is, or what your reasoning in support of the answer is. Please clarify your ambiguous statements, format your quotes as such, and include reference for those quotes to ensure context.
    – user4657
    Commented Dec 5, 2018 at 3:56

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