# Double Jeopardy?

A woman is thought to have been murdered (corrected this first sentence from a previous comment). A man is arrested for it. He is offered a plea bargain deal that will get him 15 years or he can take his chances in court but would get life if found guilty. All they have is circumstantial evidence but the arrested man is convinced by his lawyer to plea bargain due to the overwhelming circumstantial evidence against him. (side-note: For this scenario, the man did NOT actually murder this woman as we find out later in this story but he just didn't want to take the chance of getting sentenced to life in prison). Man serves his 15 years and is released...no probation, he served his entire sentence. Knowing he did not murder this woman he looks for her after he is released and finds her. Ends up she wanted to disappear and start a new life and set this man up to be framed for her murder. He is obviously mad at this woman and after he finds her, he kills her for revenge of sending him to prison and losing 15 years of his life for something he didn't do. He is arrested again and admits to the police to killing her but does not worry about being charged for murder because he has already been convicted of her murder and served his sentence. Can he be charged, convicted and sent to prison again?

• Does this answer your question? Can "Double Jeopardy" be a loophole for murder? – phoog Jun 15 at 4:32
• @phoog while that question is similar and may have the same answer, in this scenario the man takes a plea deal (thus is "guilty" of the "first" crime) however, in that related question, Person A is acquitted (thus is "not guilty" of the "first" crime). These are different scenarios. – Andrew Jun 23 at 17:13
• Double Jeopardy of 1999 is not a good teacher what is double jeopardy... – Trish Aug 19 at 21:49

Yes, because the crimes are different instances. Let's remove the guilty plea and the fact that it is murder: can a person assault a person, be tried and imprisoned, then assault the same person later – and get off by declaring "Double jeopardy!". No, it's not the same crime. It's the same type of crime, and involves the same victim, but it is still a different crime. The same with your proposed scenario. (Incidentally, your first line is wrong: the woman wasn't murdered, she was thought to have been murdered).

• Thanks for your reply. Playing Devils advocate here-not arguing. I agree that you would not be able to assault someone, over and over without getting arrested each time. In my example, he didn't actually murder this person at first. Maybe in the plea bargain, the prosecutor may not (or cannot because no body is found) charge him with murder and that charge is available later to use Would a prosecutor be savvy to think ahead "just in case?" What are the charge options for when someone is thought to cause someones death but a body is never found? Probably depends on any # of scenarios. – Chris Grose Jun 14 at 22:08
• I disagree with the assault example because that is not an analogy of murder as portrayed by the OP. A person can be assaulted multiple times but murdered only once, whence it would be one same crime if the defendant subsequently kills the victim of whose previously false murder the defendant was sentenced and imprisoned. What prevents me from posting an answer to the OP's question is that I don't know whether for purposes of double jeopardy a plea bargain truly is tantamount to undergoing trial. If so, the defendant's argument of double jeopardy would have merit. – Iñaki Viggers Jun 14 at 23:32
• People have been convicted with no body having been found, but in all cases there is evidence beyond a reasonable doubt that the victim is dead (etc). If the evidence is strong enough, the accused can be tried for first degree murder. Given the 15 year sentence, I assume this is second-degree murder, though it could be manslaughter in a tough jurisdiction like Texas. – user6726 Jun 14 at 23:55
• The specific details on "years served" can vary in this example.....I just threw "15 years" out there. My real question was whether someone can go to prison for a murder he didn't commit (whether he plead bargains or is convicted by a jury)...and then after release, murder that same person (for real) and not be charged again. – Chris Grose Jun 15 at 0:11
• @user6726 not in all cases. In some cases, the purported victim has turned up alive after the person convicted of the murder has been put to death. – phoog Jun 15 at 4:27

This is the premise of the movie Double Jeopardy (1999), and it has already been debunked by Alan Dershowitz (among others):

Mr. DERSHOWITZ: No. It wouldn't work at all. Look, any lawyer could make the argument--25 years ago, I appealed a case and I actually won it. A guy tried to shoot somebody who he thought was alive, but was actually dead. And the court ruled that man dies but once and acquitted my man of murder charges. But today, the law on double jeopardy has become very restrictive. It has to be the same transaction. The same event. It even has to be in the same state.

Can he be charged, convicted and sent to prison again?

No, it would be illogical. It turns out that your assumption about plea bargain preempts prosecution of the actual murder.

The premise of "different crimes" is a non-sequitur because a person can be murdered no more than once. Thus, any and all sets of specific facts about a murder of a person are (can only be) one and the same set of facts, regardless of whether or not the prosecutor got it/them right the first time.

Now, "a plea bargain itself is contractual in nature and 'subject to contract-law standards'", Baker v. United States, 781 F.2d 85, 90 (1986) (citations omitted). Insofar as a contract where a mistake "was made as to a basic assumption", "the contract is voidable by the adversely affected party unless he bears the risk of the mistake". See Restatement (Second) of Contracts at § 151(1). Here it is irrefutable the adversely affected party is only the defendant: He got sentenced and imprisoned for the alleged murder of a woman who actually was alive.

Moreover, the mistake or risk of mistake was not defendant's. The defendant's decision on the plea bargain does not fit the alternative terms outlined in the Restatement at § 154(a) and (b). For instance, rather than representing to the prosecutor that he committed murder, the defendant merely agreed to waive his rights in a way that both (1) benefited the prosecutor, and (2) is in line with the prosecutor's demand(s). It is unlikely for the character of the plea bargain to be such as "neither you [defendant] nor I [prosecutor] are sure 'who' murdered her, but let's just assume you [defendant] did it".

At all times the defendant was aware that he did not commit the murder for which he was imprisoned pursuant to the plea bargain. This precludes the scenario of defendant's "limited knowledge" formulated in Restatement at § 154 (b).

The only possibility is that the court could disrupt the tenets of contract law under pretext of Restatement at § 154 (c), although that would be speculative and de facto imply double jeopardy because the defendant already served his time in prison. Indeed, it is explained that "[j]eopardy 'attaches' when [...] a plea is accepted" (please note that the Wikipedia page cites Crist v. Bretz, 437 U.S. 28 (1978), although I admittedly have not thoroughly read the opinion so as to pinpoint that assertion more precisely).

Consequently, the exchange of considerations in that contract and the defendant's compliance therewith forfeit the People's option to subsequently prosecute the murder of that specific woman (because, as aforesaid, murder can happen no more than once per victim).

• To those who downvote the answer: Don't forget to give your estimate of how many times one same person can be murdered. That would clear up the misunderstanding (yours or mine). – Iñaki Viggers Jun 15 at 20:07
• Iñaki Viggers...can you put your answers into layman's terms? One that a legal novice (like me) can understand. Thank you. – Christopher Grose Jun 18 at 3:04
• Being murdered once may preclude being murdered again for obvious reasons, but that doesn't mean all possible murders of a person are the same crime. If I'm accused of robbing a bank in San Fransisco at 3:59pm and another in San Diego at 4pm on the same day, it's physically impossible for me to have done both, but that doesn't mean they are the same crime and they somehow collapse into each other. – D M Jun 18 at 4:32
• @IñakiViggers “How many times can someone be murdered” is irrelevant. Sure, the person can only be murdered once. Conviction the second time is necessarily exoneration for the first time. That does not make the two crimes the same offense for double jeopardy. – cpast Jun 18 at 5:10
• "The banks in SF and SD are two different entities" - If they're branches of the same bank, they may well not be, legally. – D M Jun 18 at 11:10