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I have a very unique and interesting theoretical debate I’m trying to find the answer to. Suppose that I am accused and found guilty of murder of a person (ex. Bob). I serve my time for the murder and am released from imprisonment. Suddenly, Bob is found alive (therefore I didn’t murder him). At this point, I’ve done my sentencing for the murder of Bob and he’s still alive. Since this has happened, am I able to “murder” Bob and not be charged with his murder (since I have already done a sentencing for his murder)? Or would I still be charged with his murder since it’s a different criminal instance?

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    Very similar to law.stackexchange.com/questions/15277/… (and not actually so unique). The short answer is no, you can still be tried for the "second" murder.
    – Nate Eldredge
    Commented Dec 25, 2022 at 1:21
  • You would still be charged as the instance is indeed different, but the more interesting question is whether the previously served sentence (which should not have been imposed) would temper (or even negate) the new one.
    – Greendrake
    Commented Dec 25, 2022 at 2:21
  • @Greendrake nah. Actually in the contrary... the law might actually by default make you a repeat offender unless the first conviction is overturned first.
    – Trish
    Commented Dec 25, 2022 at 10:39

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Or would I still be charged with his murder since it’s a different criminal instance?

Yes, this is the correct intuition. Different instance/wrong; different basis for the charge; not precluded by double-jeopardy.

In Canada, the term of art is autrefois convict. Section 609 of the Criminal Code lays out the standard for what it means for the count to be the same:

the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge

The later charge for murdering Bob would be a wholly different circumstance or "wrong" or "delict" than the first conviction was based on. The later charge would not be precluded.

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Facts

  • You were convicted for the death of Bob that happened on YYYY-MM-DD
  • Your sentence is not for life or a death sentence
  • You are released from prison and have served your time
  • You meet Bob and stab him to death on ZZZZ-MM-DD

Double jeopardy?

After your new arrest your lawyer attempts double jeopardy, pointing to the prior conviction and release. The Police laugh, the state attorney laughs and then threatens the lawyer with referencing them to the bar, because the argument is more than frivolous: You are not for arrest for the murder of Bob on YYYY-MM-DD but for the one on ZZZZ-MM-DD! You will face trial for this separate instance of murder.

This is not the 1999 film Double Jeopardy, which is founded on the same misconception!

The trial

The state will only have to prove that you killed Bob in year ZZZZ, and may use your wrongful conviction in year YYYY as evidence for a motive. The jury will be instructed that the time served between YYYY and ZZZZ is to be disregarded. The state can show beyond a reasonable doubt that Bob is dead this time and you serve for life this time.

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  • I dont see how the same person can be held to be murdered twice.
    – Neil Meyer
    Commented Dec 25, 2022 at 14:03
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    @NeilMeyer the first conviction will be overturned at some point but the second conviction will stand.
    – Trish
    Commented Dec 25, 2022 at 14:24
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    @NeilMeyer Imagine someone else killed Bob after your sentence expired. Do you think the court would have to say "no, Alice was falsely convicted of Bob's murder 25 years ago, so now Carl was free to kill Bob without punishment?" Because this situation would pose exactly the same "you can't be murdered twice" problem as the original question.
    – cpast
    Commented Dec 25, 2022 at 15:02

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