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Suppose someone were to rob a convenience store, be charged with robbery, then be found not guilty in court. After they are found innocent, that same person robs the same convenience store again. Would that person be protected from a charge of the same law by rule of double jeopardy?

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    @ohwilleke I thought the answer would be no based on my research, but a friend disagreed with me. Hence the post
    – Stevoisiak
    Jun 14, 2023 at 20:13
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  • "I thought the answer would be no based on my research": if you describe your research and why it led you to this conclusion, the question will likely be better received and you will surely get a more precise explanation of where your research or your reasoning led you astray.
    – phoog
    Jun 14, 2023 at 20:35
  • The proposed duplicate is about getting charged twice for the same crime committed a single time, whereas this is about it being committed two times.
    – Stevoisiak
    Jun 15, 2023 at 4:31
  • "The proposed duplicate...": That is correct. I didn't look closely enough. I am fairly sure that this has been asked before, but my search for that question yielded a lot of results and I picked this one in error. I've retracted my vote. If I can find an actual duplicate I'll vote again. As to the suitability of this question on this site, I believe it's absolutely appropriate to have elementary questions like this one. The answer may seem self evident to practicing lawyers and even to most well informed laypeople, but it won't be for someone who's just started thinking about such things.
    – phoog
    Jun 15, 2023 at 6:51

3 Answers 3

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No. Double jeopardy would not apply.

You can't be prosecuted twice for committing the same (or a lesser included crime) arising from the same incident twice.

If you commit a new crime you can be prosecuted for that new offense, even if you were acquitted of committing a similar offense at a different time and place in the past.

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The second prosecution could proceed

The principle against double jeopardy, reflected in s. 11(h) of the Charter and in the special plea of autrefois acquit only precludes a successive prosecution for the very same wrong or "delict."

A person may not be placed twice in jeopardy "upon the same facts" (Kienapple v. The Queen, [1975] 1 S.C.R. 729). A new instance of the offence is not "the same facts": "offenders have always been exposed to criminal liability for each occassion on which they have transgressed the law" (R. v. Prince, [1986] 2 S.C.R. 480).\

I agree with ohwilleke's statement of U.S. law; I disagree with paragraphs 2 and 3 of Acccumulation's answer. A successive prosecution of a lesser or a greater included offence is prohibited by the rule against double jeopardy. See Brown v. Ohio, 432 U.S. 161 (1977), which was precisely on this issue.

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Double Jeopardy prohibits prosecution on the same facts. So if one prosecution is based on you robbing a convenience store on Monday, and another prosecution is based on you robbing a convenience store on Tuesday, then Double Jeopardy doesn't prohibit both prosecutions.

This then is a bit of a loophole, as if there's a law that says that it's illegal to rob a convenience store, and another law that says that it's illegal to engage in robbery on Monday, then "You robbed a store, and it was a convenience store" and "You robbed a store, and you did it on Monday" would be different sets of facts, and so you could be prosecuted twice, once for each law. So if the legislature really wanted to, they could write a bunch of laws that all slightly differ, and allow people to be prosecuted over and over again without it being considered a violation of Double Jeopardy.

There does have to be at least one element in the first charge that isn't included in the new one, though. So if you are first charged under a law that prohibits robbing a convenience store on a Monday, and are acquitted, and then charged under a law that prohibits robbing convenience stores without regard to the day, then the second prosecution is not prohibited, because there's an element of the first charge (day of the week) that isn't included in the second. But if you're first charged under a law that prohibits robbing convenience stores without regard to the day and are acquitted, and then charged under a law that prohibits robbing a convenience store on a Monday, then that prosecution is prohibited, because all of the elements of the first charge are present in the second. Basically, if you didn't rob a store, then it logically follows that you didn't rob a store on Monday. But if you didn't rob a store on Monday, it doesn't logically follow that you didn't rob a store at all.

Double Jeopardy also doesn't protect against prosecution by different jurisdictions, so if Mexico charges you with smuggling drugs into the US and you're acquitted, the US can still prosecute you. Not only are different countries considered different jurisdictions, but states within the US are considered different from each other and from the federal government.

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    If you're acquitted as to Monday convenience store robbery then you can't be later charged with regular convenience store robbery for that same act - the order of the prosecution doesn't matter. If one crime is wholly included by the other, double jeopardy applies.
    – D M
    Jun 15, 2023 at 2:10
  • Also, unless the prosecutor isn't aware of the Monday-law (which would make him a bad prosecutor), he most likely will charge you for both at the same time. Maybe the "robberies on Mondays" law allows a more severe penalty than the "ordinary robbery" law.
    – PMF
    Jun 15, 2023 at 7:43
  • @DM That's false. Someone first charged with armed robbery and acquitted can later be charged with theft for the same act. "Also, double jeopardy does not apply to prosecutions for lesser included offenses if the defendant already has defeated the charge of the more serious offense." justia.com/criminal/procedure/double-jeopardy Jun 16, 2023 at 0:13
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    @Acccumulation Interesting. My source says the opposite. findlaw.com/criminal/criminal-rights/double-jeopardy.html "Also, if this man had been acquitted of an aggravated assault charge, the court could not later try him again for simple assault on the same facts." And it has a citation to a Supreme Court case. Brown v. Ohio, 432 U.S. 161 (1977) caselaw.findlaw.com/court/us-supreme-court/432/161.html
    – D M
    Jun 16, 2023 at 21:42
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    @Acccumulation I guess here: "Although in this formulation the conviction of the greater precedes the conviction of the lesser, the opinion makes it clear that the sequence is immaterial. Thus, the Court treated the formulation as just one application of the rule that two offenses are the same unless each requires proof that the other does not". And more succinctly: "The greater offense is therefore by definition the 'same' for purposes of double jeopardy as any lesser offense included in it."
    – D M
    Jun 17, 2023 at 15:02

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