I have seen the future.

It really is "Hannibal Lecter vs The DA's Office", except that this version of Lecter isn't willing to kill and eat anyone except the people he already wanted dead at the start of the movie.

It's not a BAD movie, but those two things were really bugging me.

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As I understand the law, if *new* evidence appears and a *new* trial is called, it's not technically double jeopardy. I am sure there are more requirements than this, but double jeopardy was never intended to allow someone to get away with murder; it's just that the original case with already-tried evidence couldn't be tried over and over again with the hope that a new jury would issue a different verdict than the last jury.

Totally new evidence, on the other hand, clears the air for a new trial. The old evidence, I think, isn't admissible shy of a judge's decree or agreement by both prosecution and defense, but here's where my understanding gets really weak, at least under US law.

...if a lawyer jumps on here and corrects me, so be it.

It's like the supposed OJ "If I Did It" book. Had he really written it without a disclaimer, the book could initiate a new murder trial. Likewise, he was declared not guilty criminally... but if he ever broke down and admitted it publicly, a new trial with his new admission as evidence could be called. So, he won't ever (theoretically) admit to the wrongdoing. Otherwise, he could do it without impunity. That's not how the law is designed to function.

- James -

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As for the movie, if a NEW charge is issued (murder, not attempted murder), that could be considered a new case as a different charge is present.

As I understand it. You can't be charged with the exact same crime, and in the case of the movie... it's not.

Damn those technicalities. It's what allowed OJ to be criminally not guilty yet civilly guilty of the deaths of two people. It would seem to me that if he's not criminally guilty, how can he be guilty of it in a civil case? Yet, there it is.

- James -

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I *know* you're wrong, on that one. "Double Jeopardy" means you can't be prosecuted twice for the same acts, *regardless* of the new evidence. They get one chance at one trial, and if you confess after the fact, so what? You were cleared, you can't be tried for it again.

New charge, new trial? Uh, no. Otherwise I could charge you with unlawful possession of a firearm, fail, charge you with manslaughter, fail, charge you with murder, fail, charge you with obstructing an investigation, fail, charge you with aiding and abetting a felon, fail, and continue on ad infinitum - all without you *ever* committing any alleged crime since the first incident.

The movie's argument is that, by pulling the plug on his wife, he is committing a *new crime* of murder on tope of the previous charge of attempted murder, and so the new evidence that he shot his wife combined with the new act of pulling the plug on her allow them to bring a new trial for murder.

if he's not criminally guilty, how can he be guilty of it in a civil case?

This, I can answer: Because there is no such thing as guilt in a civil case, only liability, and the standards are different. In order to be found guilty in a criminal court, the crown (or state) must prove your guilt BEYOND ANY REASONABLE DOUBT. In order to hold you civilly liable, the plaintiff must prove your culpability ON THE BALANCE OF PROBABILITIES.

So the civil court held that OJ was *probably* responsible, and fined him. The criminal court held that there was the possibility that a reasonable person might doubt his guilt, and so he was not proven guilty.

t's like the supposed OJ "If I Did It" book. Had he really written it without a disclaimer, the book could initiate a new murder trial.

Again, here I *know* you're wrong. He could have walked out of the courtroom screaming "I did it! I killed Nicole and there's not a damn thing anyone can do about it!" - and the only thing the criminal justice system could have done was take notes in case a new trial was ordered due to misconduct in the first one, or just record it for the upcoming wrongful death civil suit. That's the principle of double jeopardy: You cannot be tried twice for the same acts, REGARDLESS of any new evidence, including your own confession, that arises after your acquittal.

OJ simply left the hypotheticals in there because he still insists he's innocent, and it's entirely possible he might get *sued* for something else if he confessed. Criminally? Once the appeals were exhausted and Simpson was finally acquitted, OJ was scot free.

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According to the Wikipedia, we're both partly right and partly wrong.

Under US: "There are three essential protections included in double jeopardy: protection from being retried for the same crime after an acquittal; protection from retrial after a conviction; and protection from being punished multiple times for the same offense."

If the charge is different, it's not technically the same crime.

However, on a substantially similar charge (Manslaughter vs. Murder, I suspect, but not necessarily Attempted Murder vs. Murder, which are two more differing charges), you're right. "This law is occasionally referred to as a legal technicality, because it allows defendants a defense that does not address whether the crime was actually committed. For example, were police to uncover new evidence conclusively proving the guilt of someone previously acquitted, there is little they can do because the defendant may not be tried again (at least, not on the same or substantially similar charge) Fong Foo v. United States, 369 U.S. 141 (1962)."

http://en.wikipedia.org/wiki/Double_jeopardy

So in the case of the movie, I'd say that the two charges were different enough to warrant a new trial.

As to the civil vs. criminal, I agree with you... I was musing that it's silly that one can be found not guilty criminally yet still be found guilty of causing their deaths after the initial charge. OJ did it, in my opinion, but still... the law is odd.

There are some exceptions to double jeopardy, but methinks a loophole would be found along those lines if OJ did, indeed, start telling the truth.

...I did say I wasn't a lawyer. But I do think, at least as far as the movie is concerned, that Attempted Murder is a different enough charge from either Manslaughter (at any degree) or Murder.

http://en.wikipedia.org/wiki/Double_jeopardy

- James -

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But the act Hopkins' character committed (going to the hospital and talking to the staff and having his permanently-brain-damaged-due-to-bullet, not-going-to-wake-up wife unplugged from her ventilator) wouldn't normally be considered murder (I am assuming, since there was paperwork and the staff handled the machinery and it all seemed to be taken as quite normal, if a little sad).

The lawyer describes the new charge as premeditated murder. But since (apparently) having your wife unplugged from life support under those circumstances isn't murder in and of itself, the difference would have to be his intent. And for his intent to be brought into a court of law, then the court would have to recognize that he was guilty of attempted murder, in spite of the fact that the attempted murder charge against him was dismissed.

That's what throws me. Can the court recognize and take in to account that you're guilty of something that you were found not guilty of? Because *that* seems really odd.

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As to the actual charge used in the movie, methinks there's more gray in the real world. Manslaughter 2 (depending on the state) might fit better (or even "criminally negligent homicide" if that's a charge in CA), if memory serves, in the second trial of the movie than an outright murder trial (unless California is a state that designates stages of murder, not manslaughter, in which case Murder 2 might be appropriate... if my memory of manslaughter/murder degrees is even accurate in California.)

If the movie didn't make a distinction, then either "murder" is the highest charge available, or they just ignored the degree factor.

I think what throws you, and correct me if I am wrong, but the new charge was murder, and that charge was never brought to him before. Not knowing the *degree* of murder, that's the confusing part to me (were they getting him for "involuntary manslaughter," which doesn't require premeditation? Maybe "voluntary manslaughter," or Manslaughter 2, which has some voluntary, willful aspects but a lot of premeditation isn't necessarily required, etc.). The double jeopardy laws speak pretty much to the final charge and allow a substantially different charge to be used for a new case, so I think that's where these two cases could happen - attempted murder is apparently different enough from murder as a charge to warrant a new case, regardless of the apparent illogic of the previously disproven attempted murder charge.

Hmm. Maybe it's best to say, "it's Hollywood-esque" and call it good, at least until we can find a real Californian criminal lawyer? ;-)

- James -

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It doesn't matter if the charge was never brought against him before. Double Jeopardy protects you against serially bringing different charges for the same act, as well as repeatedly bringing the same charges.

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Perhaps the difference is in the act. Presumably, the original charge was for the gunshot that put her in the hospital, the second trial was on the pulling of the life support. Those two events (regardless of how cause and effect may work in the real world) could be the difference between double jeopardy and a new trial for a different act.

- James -

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Except that terminating your wife's life support is legal, and so cannot be something you get charged with murder over.

In order for pulling the life support to be a crime, and particularly for the new confession and the newfound murder weapon to be useful evidence of this crime, you have to prove that he shot his wife in the first place.

And he's already been acquitted of attempted murder for the shooting of his wife.

So now she's dead, and they're trying him for *murder* for shooting his wife.

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I'm betting the script owed a lot to the Terri Schiavo case and was designed to play on various heart strings and not serve as an example of good case law. Hollywood's funny that way (even if the film isn't from Hollywood).

- James -

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> I think what throws you, and correct me if I am wrong, but the new charge
> was murder, and that charge was never brought to him before.

No. What throws me is that the new charge is specifically premeditated murder, for the act of having his wife unplugged from her life support. But there is nothing to support the contention that this is premeditated causing of a wrongful death *unless* the prosecution brings in the fact that he's guilty of shooting his wife--which he has been legally acquitted of doing.

In other words, it seems that his guilt in shooting his wife (indicating a murderous attempt, and providing in some way a basis for the idea that unplugging her was Murder In The First Degree--a wrongful death he had been planning and working towards--rather Perfectly Correct Legal Behaviour) is key to the prosecution's argument, and that guilt has been legally determined to not exist.

So I am puzzled as to how you can bring charges against someone when your key argument is that he's guilty of something he was already proven innocent of.

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He was found not guilty of attempted murder, the legal statute. Did he ever admit to shooting his wife? (Therein may lie the difference, I guess.) If the shooting itself, whether seen as accidental or not, was something uncontested or otherwise argued as an accident, the detail of him shooting his wife might still be valid evidence even when the initial charge of attempted murder didn't hold.

It might be like charging someone with attempted murder after a barroom brawl, but alcohol and passionate tempers might have been used to reduce the charge to involuntary manslaughter or an outright finding of not guilty of attempted murder. That the fight happened isn't in question, that the defendant beat up or otherwise harmed the prosecution's client isn't in question, it's just that the intent for attempted murder was cleared.

But, if the not-guilty verdict centered around "I did not shoot her," I'd think that we have a bad script.

- James -

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The not guilty verdict stemmed from him standing up in court, stipulating that every admissible piece of evidence that the Prosecution had provided to him through Discovery was true, and that it all was not good enough to prove beyond a reasonable doubt that he had shot his wife.

Since the prosecution did not have any evidence to prove he did it, he thus moved to dismiss all charges - an acquittal.

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Dismissed and acquitted are different in some cases and states - I assume you're right in that he was acquitted (which leads me to believe it's a bad script that didn't get run by a competent lawyer), but a truly dismissed case without a declaration of not guilty as I understand it can be retried later, or at least elements can become the foundation for a new charge.

Assuming the judge and jury said that they found the defendant not guilty and it wasn't just a "case dismissed" call without a formal verdict, then we likely have a bad script, especially if all the other evidence was claimed to be true (though circumstantial, presumably).

Sounds more and more like a bad script.

- James -

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mazarinade.livejournal.com

The OJ case was the difference between 'we're not sure enough to jail him' and 'we're sure enough that he ought to pay compensation'. Different standards of proof between the two, a rule that's common to all common-law jurisdictions. To prove a crime, the prosecution must prove it beyond reasonable doubt. To win damages, or beat a claim for damages, all you have to prove is that your story is more likely than the other guy's.

Your understanding of the double jeopardy rule is good enough for most purposes, although probably not detailed enough to get you a high mark on a law degree final exam.

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Being good enough for most purposes is more than good enough for me, not being a lawyer and all. ;-)

I am well aware of the differences between a civil requirement for the "preponderance of evidence" and the more stringent "beyond a reasonable doubt" criminal case. Still, it just seems... silly to me. If you're proven not guilty of the crime, you're not guilty of the crime. How can one logically (not legally) be responsible if one is not guilty? (Outside of coercion to make others do it, like with Charlie Manson, I guess.) I never suggested it was necessarily the wrong decision in the civil case, it's just... silly, in a way, to me. It just feels like a technicality even if it's not double jeopardy (which I never specifically suggested). I still think OJ did it, but... ah, whatever. He'll likely only finish payment on the civil judgment after he's dead and they raid whatever is left of his estate. Some victory, eh? ;-)

- James -

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mazarinade.livejournal.com

The rationale, and this goes back to the late mediaeval roots of the common law, is that a criminal trial is an argument between an individual and the state, with all its resources, so the bar has to be set higher, and since back then all of the punishments - hanging, maiming, flogging and so on - were sufficiently irrevocable that it was thought best to be sure.

A civil trial is just an argument between two people which the state is adjudicating, and someone has to win.

So it's entirely logical to escape criminal penalties - the evidence against you is murky enough that the state shouldn't be allowed to jail/hang you - but have to pay damages because the relatives of the deceased have enough evidence that you ought to face the much lower penalty of having to pay compensation, given that you didn't have to face a case backed by all the funding and manpower of the state.

Once you grasp that the axioms from which the logic proceeds are political decisions based on medieaval concepts of criminal and civil responsibility filtered through a theory of civil responsibility devised to settle late 18th-early19th century contract disputes, the logic of the conclusions isn't so illogical.

I'll agree that some of the premisses don't bear too close an examination, but the conclusions flowing from them are pretty logical.

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chizzer.livejournal.com

The pulling the plug equals murder thing is interesting when you take it in the perspective of Canadian law.

According to Canadian law, an act qualifies as murder if the victim dies no later than a year plus one day after the injuring incident, and the prosecutor can demonstrate direct causality from injury to death.

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chrisrw109.livejournal.com

You guys have discussed Number 1 fairly thoroughly, my short version is that I think it's hollywood-ization because it's sort of the 'well we know that you're really guilty so we'll work around it by saying that you killed her now because you tried to kill her before'.

But I can tell you #2 is completely bullshit :). Evidence discovery doesn't happen in front of the jury. Because at the very least opposing council has to be given a chance to examine any new evidence, work in their counter-arguments etc. Even beyond that, if you ask about evidence that's not been admited/barred in front of the jury then you blow the doors wide open for a mistrail since the Jury is supposed to be kept 'pure' for the most part. So in that case if the prosecutor brings up three points of evidence, and one is rejected but the other two are kept? The defense attorney can argue that the jury was influenced by the piece that was thrown out.

(This is similar to when one lawyer comes up with 'surprise' witnesses and 'surprise' questions)

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anivair.livejournal.com

Is it not possible to introduce new evidence in front of the jury with the understanding that the other side could ask for it to be stricken or given time ot examine after the fact? Happens on TV all the stupid time, but I'm not sure if it's even possible in theory.

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Not exactly. You can bring up things the defense wasn't prepared for, but not things you didn't tell the defense you were going to ask.

If the defendant lied to his lawyers, of course, the defense might think a set of questions is totally innocent and be blindsided by an answer - but that's different.

As far as introducing it in front of the jury, you *can* introduce things in front of the jury and risk them being stricken, but if they are stricken, then the jury was never supposed to see them in the first place and you risk an accusation of prejudicing the jury.

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OK, after a quick search, I found this in the (notoriously editable) Wikipedia, so take it with a grain of salt.

"However, Beachum reveals that by allowing his wife to die, Crawford's crime has been elevated to murder (rather than attempted murder) and is therefore no longer subject to the rules of double jeopardy."

I can only assume that with a new crime substantially different than attempted murder comes with it the ability to re-admit evidence into the new trial, coupled with whatever Ryan Gossling's character has figured out which allowed the first trial to get an acquittal.

If this is the case, then as a *new* trial all bets were off from the previous one, given that the elevation of the charge was different.

That it is not specifically illegal to allow the end of life for a spouse would seem to be the one sticky point. Should the movie have continued past the end credits, I can only assume an appeal would have been launched and likely succeed, but that's no fun. ;-)

Is that any better? One judge allowed the new case to proceed, but we never got to see if it held up on appeal.

- James -

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Whoops, here's the reference: http://en.wikipedia.org/wiki/Fracture_(film)

- James -

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> comes with it the ability to re-admit evidence into the new trial

Doubt it; the confession (both spoken and written) was ruled to have been obtained under duress (since it was given in the presence of the cop who was the wife's lover and who'd beaten the crap out of Crawford during the arrest), so I doubt it'd be admissable. They also had Crawford's gun, which was clearly not the murder weapon.

They had security camera footage of someone who might be Crawford (but neither the lawyer nor the detective really seem to think that the identification will stand up; the angle's bad, and what you can see of him is an narrow slice of chin, sunglasses, and a floppy hat) going into the detective's hotel room before the murder. (This is when Crawford swapped his own gun for the cop's, but they don't have *that* on tape.)

Now, they *did* have the cop's gun, and could have run ballistics tests to show the bullet in his wife's head, like the other four he fired, came from that gun--

--but that wouldn't've helped, since those ballistics tests would *also* show that that bullet *didn't* match all the other ones he clearly fired. Because, you see, the cop had the original bullets from the evidence locker *replaced* with different ones in an attempt to fake evidence and get Crawford convicted.

Dammit. The more I look at that movie, the dumber the tone gets--it's apparently a story about cocky law enforcement overreaching themselves and shooting themselves in the foot, and yet apparently you're supposed to take the end of it as a victory on their part.

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