Double jeopardy

Why should the prosecution get another opportunity to try a defendant when there is a hung jury? Is this a violation of the spirit of double jeopardy?

Not really, double jeopardy applies when after an acquittal or conviction or multiple punishments for same offense. The idea is to prevent someone having to face prosecution over and over after being found innocent or guilty of a crime, a hung jury (or other court error) does not really qualify as neither guilt or innocence was established.

A hung jury is a form of mistrial, and the common view is that the jeopardy standard doesn't apply until a verdict is rendered.

OrphanSlug said:

Not really, double jeopardy applies when after an acquittal or conviction or multiple punishments for same offense. The idea is to prevent someone having to face prosecution over and over after being found innocent or guilty of a crime, a hung jury (or other court error) does not really qualify as neither guilt or innocence was established.

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Kobie said:

A hung jury is a form of mistrial, and the common view is that the jeopardy standard doesn't apply until a verdict is rendered.

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When the State has chosen its timing (when to press charges) and had the full and complete advantage in that it can throw the formidible resources of the people behind its case, seems to me that a hung jury denotes that the State failed to prove its case.

The State can (and does) destroy people's lives (and the lives of their families) before they even go to trial. Spending them broke, if you will.

How many retrials is too many?

MaggieD said:

Why should the prosecution get another opportunity to try a defendant when there is a hung jury? Is this a violation of the spirit of double jeopardy?

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I do not believe the original intent was there, but I do believe that reality and current common application has evolved to the point that hung juries are too quickly declared as mistrials specifically so they can avoid acquittals and/or double jeopardy, and get another shot, so... in today's current legal atmosphere I say 'yes', it is a violation of the spirit of the safe guard of double-jeopardy.

MaggieD said:

When the State has chosen its timing (when to press charges) and had the full and complete advantage in that it can throw the formidible resources of the people behind its case, seems to me that a hung jury denotes that the State failed to prove its case.

The State can (and does) destroy people's lives (and the lives of their families) before they even go to trial. Spending them broke, if you will.

How many retrials is too many?

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That's a good question, and one that I have pondered before. I do think there should be a limit. If you can't get a conviction in two (maybe three) tries, you should be done.

MaggieD said:

When the State has chosen its timing (when to press charges) and had the full and complete advantage in that it can throw the formidible resources of the people behind its case, seems to me that a hung jury denotes that the State failed to prove its case.

The State can (and does) destroy people's lives (and the lives of their families) before they even go to trial. Spending them broke, if you will.

How many retrials is too many?

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My advice is to divorce two thoughts you seem to be mashing together. In this case hung juries from cost of defense.

It is a bit problematic to suggest that any "hung jury" always means the prosecution failed to prove its case, since really what we are talking about is jury disagreement that can be for any reason.

I will stipulate that there is always the possibility that a jury hangs because of prosecution case weakness or some evidence ambiguity, but there is also possibility that a jury hangs because of someone on the jury's concern with fairness, or police credibility, or case complexity, or politics, or some other identification that has nothing to do with the case. One hold out for however long despite the evidence can still mean a mistrial. Back to the same point, innocence or guilt was never established in terms of case disposal.

Spending on criminal case defense, or money in our legal system, has always been a headache. Hung jury issue aside for a moment, we have known for some time now that the more money paid for defense the more probable for favorable outcome of that defense. Made even worse by the so called "celebrity" standard vs. the rest of us. I will agree there is the potential condition for a weak and perhaps ill-motivated prosecution case to "destroy" a family faced with the complexity and costs of defense. However, there may not be all that much we can do about in the practical sense.

To your last question, I am unsure. There may be a practical limit to the number of retrials based on the evidence and prior court outcome.

MaggieD said:

Why should the prosecution get another opportunity to try a defendant when there is a hung jury? Is this a violation of the spirit of double jeopardy?

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No. A hung jury just means that there is a mistrial It's not an acquittal.

MaggieD said:

When the State has chosen its timing (when to press charges) and had the full and complete advantage in that it can throw the formidible resources of the people behind its case, seems to me that a hung jury denotes that the State failed to prove its case.

The State can (and does) destroy people's lives (and the lives of their families) before they even go to trial. Spending them broke, if you will.

How many retrials is too many?

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No pun intended [ well, maybe a little bit ], but I think that would have to be looked at on a case by case basis.

MaggieD said:

The State can (and does) destroy people's lives (and the lives of their families) before they even go to trial. Spending them broke, if you will.

How many retrials is too many?

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Personally, I think there should be co-equal Prosecutors offices and Defenders Offices. I'm not talking about "Public Defenders" as they currently exist for the poor, I'm saying of the State is going to charge a person and expend "X" resources to do that, then their should be a structure for the State to provide the other side of the argument expending "X" resources also. Being charged with a crime and facing financial ruin for your family should not happen.


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MaggieD said:

Why should the prosecution get another opportunity to try a defendant when there is a hung jury? Is this a violation of the spirit of double jeopardy?

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I definitely think it is double jeopardy. If you bring a case against someone- if you attempt to take away their freedom- you better have a good case. You should only get one shot. I heard about a case yesterday where first degree murder charges were brought against a lady along with 2nd degree and a bunch of other charges. The jury found her NOT GUILTY of first degree murder, but were hung on all the other charges. Retried her and sent her to prison for 40 years.

Which is it? Is it first degree murder or second degree? It couldn't be both- so why can't they charge people properly? I think on a murder rap, they should only be able to bring one murder charge per dead victim. They charge with first, second, third, and manslaughter hoping something will stick. They should be able to make a case for the one single version of murder that they think occurred. I don't care what anyone says. If a person is tried for murder, found not guilty- they should not be able to bring back another case on a different degree of murder. That IS double jeopardy.

radcen said:

I do not believe the original intent was there, but I do believe that reality and current common application has evolved to the point that hung juries are too quickly declared as mistrials specifically so they can avoid acquittals and/or double jeopardy, and get another shot, so... in today's current legal atmosphere I say 'yes', it is a violation of the spirit of the safe guard of double-jeopardy.

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You have a good point, but sometimes there is only one or two juror holdouts for an apparent very guilty person, and that would be unfair to the victims, the people and the public. Because it would be unfair to the defendant for one guilty juror holdout to cause a hung jury, perhaps a compromise to somewhere in the middle would be appropriate.

WorldWatcher said:

Personally, I think there should be co-equal Prosecutors offices and Defenders Offices. I'm not talking about "Public Defenders" as they currently exist for the poor, I'm saying of the State is going to charge a person and expend "X" resources to do that, then their should be a structure for the State to provide the other side of the argument expending "X" resources also. Being charged with a crime and facing financial ruin for your family should not happen.


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Im happy to see some agreeing with me here.

Many a plea bargain has been taken by an innocent solidly middle-class person because the cost of facing the enormous resources of the state in defense would ruin him and/or his family.

If the state is entitled to one bite of the apple, they shouldn't be able to spit it out and take another one.