Is this "Bait-And-Switch" defence possible?

Question

I was kind of inspired by a television programme I was watching recently - I won't spoil it by saying its name.

Let's say my friend committed a murder and wanted to get away with it. So together we conspire to frame me for the crime. By subtly "allowing" the evidence to point to me, all the time I protest my innocence to the police, but I am careful never to do so to their absolute satisfaction, e.g. acting like I'm unable to explain certain pieces of key evidence.

After much investigation, they are confident that in spite of my protests, it was me, so we go to trial where I plead "Not Guilty". Then, during the trial, a new piece of evidence is suddenly "found" that proves I could not have possibly committed the crime! (e.g. Someone who happened to be recording a video on their phone with a clock in the background as I walked past or something, showing me somewhere else at the time of the murder).

So I'm acquitted.

So do the police just give up now? Was that their only chance? Or will they start a new investigation to try to find who really did the crime, with another possible trial of another suspect?

I've tagged several countries that I'm familiar with, but if the answer is different in different jurisdictions then that would be interesting too.

For those curious the show I was talking about is

You Don't Know Me Not exactly the same thing that I'm asking about happens, but along similar lines.

Answer 1

Police continue to investigate

Following an acquittal, there are two possible positions for the police:

1. they are certain the acquitted person performed the act but they were not guilty (for all sorts of reasons). The investigation is closed because although the police know who did it, there was no criminality due to the not guilty verdict.
2. The evidence in the court shows that the accused did not commit the act. Ergo, someone else did. The police will keep looking for that someone else.

Note that the proposed scenario is highly dangerous for you.

First, the exculpatory evidence may be inadmissible, particularly if it is an alibi (see Can I surprise the prosecution with an alibi defense at trial?). To rely on an an alibi defence, it must be raised with the prosecution before the trial. You would have to have said that you were where the phone footage was shot before the trial starts and the police may have therefore discounted you as a suspect from the get go.

Second, you are now committing a crime, usually called an attempt to pervert the course of justice and this action may also make you an accomplice to the murder after the fact. You beat the rap on the murder and then spend a lot of time in prison for those two.

Answer 2

Double jeopardy applies to the defendant, not the crime. I don't know of any jurisdiction that prohibits double jeopardy, as long as it's different people that are being put in jeopardy (and many places don't even prohibit double jeopardy against the same defendant). Practically speaking, an acquittal against one person will make it more difficult to make a case against someone else, both in the investigation and probably in the prosecution of the case. And for less serious charges, the statute of limitations may have run out by then.

If you really want to take advantage of double jeopardy, the way to do it is for you to plant a bunch of fake evidence against your friend, have your friend be prosecuted, then reveal halfway through the trial that the evidence was faked, then once the government drops the prosecution of your friend and files charges against you, your friend reveals actual evidence that they really did it. But even that would not be foolproof. Possible avenues of further prosecution could be separate sovereigns (a state acquittal doesn't prohibit prosecution by the federal government or other states), lesser included offenses that were not initially charged, obstruction of justice, etc. Not committing murder is a much, much more effective way of evading conviction than trying to find legal loopholes.

Answer 3

This is a classic fictional device. I remember it from Baby, Would I Lie by Donald Westlake, and I think a Perry Mason novel. The Agatha Christie play Witness for the Prosecution used a variant of this scheme.

It is rare in real life, and it is quite risky for all involved.

In addition to the possibilities mentioned in comments or other answers, the jury (or judge if a non-jury trial) might simply disbelieve the exculpatory evidence. Then the accused might be found guilty and executed (in some US states) or imprisoned for life or a long term. Whether to believe any particular item of evidence or testimony is always a judgement call for the fact-finder, and an appeals court will be very reluctant to upset any such decision. Generally only a finding that no rational fact-finder could possibly have acted as the actual one did will suffice. That is a very high bar.

Even if the initial accused is acquitted of murder, charges of obstruction of justice or tampering with evidence or the like might be brought against that person. And the police might well figure out what is going on and charge the actual criminal with the crime, and charge the person with the alibi as an accessory. Evidence of an attempt to fake the outcome might then be used against the actual criminal.

Answer 4

So do the police just give up now? Was that their only chance? Or will they start a new investigation to try to find who really did the crime, with another possible trial of another suspect?

Absolutely not.

In the UK, the case of Adolph Beck is the reason we have an appeals court. More recently, and probably more relevant to the question, the case of Stephan Kiszko and the subsequent conviction of Ronald Castree on DNA evidence many years later demonstrates that there is no such thing as "their only chance". Obviously it is true that the more time passes, the less likely it is that the actual culprit will be found, and any team set up to investigate this specific incident will be moved on to other things. But that doesn't mean anything is ever fully over, merely that the police are waiting for new evidence to come in.

Also...

Was that their only chance?

It isn't even their only chance with you! The law around double jeopardy was changed in England and Wales in 2003, so double jeopardy now only applies if there is no new evidence. If new evidence appears (perhaps a confession from your accomplice) then you're going to be back in court again. And even before that, you could still be convicted for perjury because you lied in court, even if a murder conviction was no longer possible.

Answer 5

In the U.S. at least, the Constitution only prohibits double jeopardy. This does not restrict them from prosecuting another person for the same crime following an acquittal because no one is placed in double jeopardy for the same crime - multiple people are put in single jeopardy for the same crime.

Some other jurisdictions (such as Italy, which you do not tag) allow double jeopardy and the prosecution is permitted to appeal an innocent verdict (see the Amanda Knox case for a notorious example of this).