Lets say there is a serial killer who sexually assaults their victims before killing them.

For the sake of argument, lets say prosecutors fail to successfully charge them with murder the first time around.

After a while, investigators realize that the victims were raped before being killed. Can they bring in a fresh new criminal case (this time for rape) against the original perpetrator? Or would they be protected from further prosecution under double jeopardy?

  • @bdb484 that dupe isn't exactly on point, since this hypothetical involves multiple distinct acts (murder vs. sexual assault) that could be entirely separate crimes. It's definitely relevant, but not exactly on point.
    – Ryan M
    Oct 15 '20 at 10:33
  • @RyanM bdb484's answer to the allegedly-duplicate question directly addresses the situation where the elements of the two offenses differ. The controlling case is Blockburger, and I agreed with the vote to close here as a duplicate. Oct 15 '20 at 18:36

Double jeopardy does not apply to different offences

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb...

The Supreme Court has held that it means what it says - murder and rape are different offences and so the double jeopardy clause is not triggered.

However, if an offence requires that the same elements (or a subset of them) be proved, then they are the same offence. So, for example, both murder and rape normally incorporate the elements of common assault - a person acquitted of either murder or rape cannot subsequently be charged with common assault.

Further, the principle of res judicata applies to criminal cases as well as civil cases. Therefore any fact or issue of law that was decided in the first trial cannot be reagitated in the second.

  • An acquittal for a lesser included offense bars prosecution for the broader offense, but the opposite does not hold. And res judicata does not apply to a civil suit for an offense the defendant was acquitted of in a criminal trial. Oct 15 '20 at 5:59
  • What is stopping prosecutors from dividing their single case into multiple subsets from the get-go in order to get around double jeopardy intentionally and to prolong the legal battle and maximize probability of conviction? (Either in a criminal setting or a civil setting, where a goal might be for a corporation to stall a competitor in court for as long as possible?)
    – AlanSTACK
    Oct 15 '20 at 6:01
  • @Acccumulation it will do if the basis for the acquittal is failure to prove an element common to both. In a jury trial it can be hard to see exactly why the prosecution failed but in a bench trial the judge will give reasons.
    – Dale M
    Oct 15 '20 at 8:02
  • @Acccumulation also res judicata only applies between the same parties, so it does prevent a civil suit where the government is a plaintiff.
    – Dale M
    Oct 15 '20 at 8:04
  • @AlanSTACK a civil suit has a stronger res judicata which requires a plaintiff to bring ALL the claims that arise from a particular circumstance. As for a prosecutor, most are content to blame a perverse jury/judge rather than keep tilting at windmills. Further, if the do this it starts to look like persecution rather than prosecution and the defendant can ask the court to rule it an abuse of process.
    – Dale M
    Oct 15 '20 at 8:08

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