The movie thriller, "Double Jeopardy" gets the concept of double jeopardy completely wrong.  Here, I'll explain the basics of double jeopardy under the law and how the movie got it wrong.

The legal concept of double jeopardy comes from the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution, which states:

The Double Jeopardy Clause prevents a criminal defendant from being tried more than once by the same sovereign for the same offense.

First, double jeopardy only applies if the defendant was either convicted (found guilty) or acquitted (found not guilty) after the first trial.

Second, it must be the same sovereign that is trying the defendant both times.  Each government entity is a separate sovereign.  The federal government is separate from the states, and each state is a separate sovereign from the others.  Also a Native American tribal government is separate from the federal government and states.

A true crime example of this was shown during the trials of the LAPD Officers who were accused of beating Rodney King.  The four officers were initially charged by the state of California (through the Los Angeles County District Attorney's Office).  They were acquitted of the charges in state court.  The acquittals sparked the L.A. Riots.  The federal government then charged the four officers with civil rights violations based on the same incident.  This was not precluded by the Double Jeopardy Clause because the California and the federal government are two separate sovereigns.

The third requirement of double jeopardy is that the crimes charged in the first and second trials must be for the same offenses.  This is determined by the same elements test.  The elements of the crimes charged in the first and second cases are compared.  If there is an element that must be proven in each crime that is different from the other, than the crimes are not considered the same, and double jeopardy does not apply.

*SPOILER ALERT
In the movie "Double Jeopardy," a married couple spend a weekend sailing.  The wife, Libby (Ashley Judd), wakes up to find blood all over herself and the boat.  Her husband, Nick, is missing.  She arrested when the coast guard spots her holding a bloody knife, which she found on the deck.

Libby is convicted of Nick's murder.  Her best friend agrees to care for her four-year-old son while Libby is in prison.  While on the phone with her son, Libby hears a door open in the background, and her son yells, "Daddy."  The phone disconnects.

Libby suspects Nick faked his death and framed her for murder.  Another inmate advises Libby that when she was paroled, she could kill Nick with impunity because she had already been convicted of his murder, and the Double Jeopardy Clause would prevent her from being charged again.  Libby does just that.  (Tommy Lee Jones plays Libby's parole officer who at first investigates her violations of parole, then helps her once he realizes her story may be true.)

Lesson number one:  Never take legal advice from a fellow prison inmate - or a movie - without first checking with a lawyer.

Libby's fellow inmate, and this movie, get the concept of double jeopardy wrong.  If someone is wrongly convicted of murder, they do not then have free license to kill that person if the person is found alive.  

Although both charged crimes are for the murder of Nick, they are two separate incidents.  The dates, facts, and evidence supporting each charge would be completely different.  Therefore, the charges are not for the same offense.  

Also, in the movie, the first framed murder occurred in Washington state.  The second murder occurred in Louisiana.  Therefore, double jeopardy would not bar the second prosecution because the two states are not the same sovereign. 

Because she was falsely convicted the first time, she could probably sue and recover some money to compensate her for her time in prison, but she would not be able to use that first conviction as a defense for her the second (valid) charges.

Check out the movie by clicking below:

If you are a writer, get a free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.  For your first free consultation on your project, contact me.

OJ Simpson has claimed that his attorney for his Las Vegas robbery trial was ineffective. He has asserted two bases for his claim: 1) conflict of interest, and 2) failure to tell him about a plea offer.  This raises the question of what a criminal defendant must show for a claim of ineffective assistance of counsel.

What Is Ineffective Assistance of Counsel?

The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to the effective assistance of counsel. 

That doesn't mean a defendant has the right to a perfect attorney or even a really good attorney.  It simply means a defendant has the right to an attorney who doesn't mess up in a way that is considered outside the professional norm.  Even then, the mess-up has to be so bad that it changes the outcome of the case.

Unlike a trial where the prosecution has the burden of proof to show a defendant is guilty, here it is the defendant's burden to prove that his attorney was ineffective. This is usually done through a petition for writ of habeas corpus. The defendant has to prove two things.

First, he must prove that his attorney acted outside the bounds of what is acceptable for a criminal defense attorney. This must be something more than a disagreement about tactics. It has to be something big. There are cases where even a drunk or sleeping attorney has not been held constitutionally ineffective.

Second, the defendant must prove that the attorney's mistake changed the outcome of the case. "If it wasn't for the mistake, I would have been acquitted." This is called prejudice.

Was OJ Denied the Right to the Effective Assistance of Counsel?

In OJ Simpson's case, he claims his attorney had a conflict of interest because he advised OJ that taking his memorabilia back was legal. A conflict of interest usually exists when an attorney has divided loyalties. Even if OJ's claim is true, it is unclear how that would have divided the attorney's loyalties. It is also unclear how that would have changed the outcome of the case. OJ would have to show his attorney's conflict caused him to be convicted when he would not have otherwise.

OJ's other claim is that his attorney did not tell him about a plea offer. a criminal defense attorney has a duty to communicate any plea offers to his client. The problem with this claim is that OJ would have to prove that he would have accepted the plea offer if he had known about it. Without that showing, there is no prejudice. No harm, no foul.  This is highly unlikely here. I suspect there is nothing that would have gotten OJ to plead guilty in this case.

It is generally very difficult for a criminal defendant to show that her attorney has been constitutionally ineffective. It does not appear that OJ will be able to make that showing.

Sign up for my free eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama.

A common question that is asked is what is an alibi defense?  An alibi defense is a classic example of a type of defense called failure of proof defenses.

The easy explanation of an alibi defense is that the defendant claims he was somewhere else when the crime occurred.  To assert this defense in court, the defendant must generally bring forward some proof - a receipt, time-stamped photos, credit card charges, or a witness who saw the defendant.  The stronger the evidence that supports the alibi, the more likely such a defense will be successful.

Once the defendant has asserted an alibi defense and put on some evidence of it, the burden shifts back to the prosecution to prove the defendant was the person who committed the crime and was in the place where the crime was committed. 

Of course, it is the prosecution's burden of proof to begin with to prove beyond a reasonable doubt that the defendant was the person who committed the crime.  However, if the defendant puts on some alibi evidence and the prosecution is unable to rebut it, the defendant may be entitled to an acquittal (a finding of not guilty).

There is of course a big difference between the defendant's mom or wife testifying that he was with her the entire night (the most common alibi evidence), and a security camera capturing the defendant's image miles from the crime scene at the time the crime took place.

I once had a case where the defendant's wife had a long explanation about how she knew the defendant was with her the night of the robbery because they had signed loan documents that night, which were dated.  However, it later turned out the robbery occurred the night after the loan documents were signed.  The wife still testified her husband was with her that night, but after the passage of over a year, she was unable to bring forward any more specific proof.  He was convicted of the robbery.

Get a free eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama. 

Also, get a free printable and portable Miranda Card, detailing the Miranda rights as read by the police.

This is an almost daily scene in television and movies:  An undercover police officer begins discussing an illegal transaction with a known criminal.  The criminal asks, "Are you a cop?"  Of course, the police officer says he is not.  The criminal is satisfied, and they conduct their illegal transaction.

In real life, if an undercover police officer is asked whether he or she is a cop, do they have to tell the truth?  The short answer is no. 

Police officers are allowed to lie to suspected criminals.  The police officer who lies and says he is not a cop will not get in trouble, and any evidence he collects as part of the undercover operation can be used in court.

I have sometimes been asked, isn't it entrapment when a police officer lies and says he is not a cop?  Again, the answer is no. 

Entrapment generally occurs when a police officer (or other government agent) induces the defendant to commit a crime he would not have otherwise committed.  Simply providing someone the opportunity to commit a crime is not entrapment.  Certainly telling someone that he or she is not a cop would not induce someone to commit a crime they would not have otherwise committed.

So, why do television shows and movies always do this?  I don't have a good answer for that.  Maybe it's an easy way to show the criminal is suspicious of the undercover cop.  Maybe it's laziness or ignorance on the part of the writers.  One thing is for sure:  it is overused and suggests an incorrect legal standard.

For more information like this, check out a free ebook revealing the Top 7 Mistakes Made by Writer of Crime, Mystery, and Legal Drama.

What is required to prove a criminal defendant is legally insane?  Each state has its own laws and rules about its legal definition of insanity, but there are some general concepts that can be used to understand what it means to be legally insane.  It is important to note that the insanity defense is rarely used and has even been abolished in some states.

Insanity is generally considered an "excuse" to committing a crime.  An excuse defense is where, even though the defendant engaged in criminal conduct, he is excused from legal responsibility because of some condition in the defendant.  

Insanity is also considered to be an "affirmative defense."  An affirmative defense is one in which the defendant must affirmatively assert the defense and produce some evidence supporting it.  For some affirmative defenses in some states, the defendant also has the burden of proving the defense is true.  

Defendants are generally presumed to be sane, so a prosecutor does not need to prove the defendant was sane unless the defendant puts his sanity into question.  Once it is put into question, either the prosecution must prove the defendant was sane beyond a reasonable doubt or the defendant must prove he was insane by a preponderance of the evidence.

In some states the defendant must enter a special plea, such as not guilty by reason of insanity. Some states have a separate sanity phase where the jury determines the defendant's sanity after it has decided he committed the charged crime.

The focus of determining a defendant's sanity is his mental condition at the time of the crime.  (This is one way the test for insanity is different than the test for competence to stand trial.  For a discussion of the differences between sanity and competency, check out this prior post.)

To be found insane, the defendant must show that he suffered from a mental disease or defect at the time he committed the crime.  Generally, the mental disease or defect may be permanent or temporary.

The M'Naghten Test

The defendant's mental condition must satisfy the legal standard for insanity.  The M'Naghten test is traditionally the most commonly used  test to determine insanity.  Under the M'Naghten test, a person is considered legally insane if: 

1.  at the time of the crime
2.  he suffered from a defect of reason that resulted in him either
     a.  not knowing the nature and quality of the act he performed, or
     b.  not knowing his act was wrong.

A defendant knows the nature of his act if he knows what act he is performing.  He knows the quality of his act if he understands the consequences that flow from his act.

For example, a woman is charged with murdering her baby by drowning.  To prove she was legally insane, she must prove that because of a defect of reason, she either did not know she was holding her baby's head underwater, or did not know that holding the baby's head underwater would result in him drowning.

Alternately, the defendant can show she did not know that her act was wrong.  The term "wrong" in this context may mean either legally wrong or morally wrong, depending on the state.

In the above example, if the woman knew she was holding her baby's head underwater and understood this would cause the baby to drown, but she believed she must do so to rid him of the devil, she would assert that she did not know her act was wrong.  This would be an example of a moral wrong.

Insane Delusions

If someone suffers from delusions because of a defect of reason, they may be able to assert the insanity defense, depending on the nature of the delusion.  If the delusion was to a fact that, if true, would have justified the defendant's acts, he could assert the insanity defense.  If, however, the delusion was to a fact that, if true, would not have justified the defendant's acts, he may not be considered insane.

For example, the defendant was delusional and believed the victim was holding a gun when in fact e was holding a pen.  The victim pointed the pen at the defendant, who believed he was about to be shot.  The defendant pulled out a gun and shot the victim.  The defendant could assert the insanity defense because, had the victim really pointed a gun at him, he would have been justified in shooting the victim in self-defense.

However, if the defendant's delusion was that the victim tricked him out of his money, and he shot the victim in revenge, he would not be considered legally insane because, even if his belief was true, tricking someone out of their money does not justify shooting them.

Irresistible Impulse Test

The irresistible impulse test is sometimes used in conjunction with the M'Naghten test.  Under this test, the defendant must have a defect of the mind that makes it impossible for him to control his actions.

It is not sufficient to meet this test if someone is overcome by anger, jealousy, or other strong emotions.  (Such passion may be sufficient to reduce a killing from murder to voluntary manslaughter, but it cannot be a complete defense.)

Model Penal Code Test

Another test for insanity is set out by the Model Penal Code.  Under this test a person is considered insane if, because of a mental disease or defect, the person did not have the capacity to:
1.  understand the criminality or wrongfulness of his conduct, or 
2.  to conform his conduct to the law.

This is sometimes called the "policeman at the elbow test."  In other words, if the person would have committed the act even if there had been a police officer at her elbow watching her, she is considered unable to have understood the wrongfulness of her conduct or to conform her conduct to the law.

A defendant's sanity may be proven by either medical professionals or by lay (non-expert) witnesses.  Lay witnesses may testify about the defendant's behavior around the time of the crime to help the jury determine whether the defendant was sane or insane at the time of the crime.

To understand the differences between insanity and competency to stand trial, click here.

Claim your free E-book on The Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama.

Yesterday, a judge considered the competency of the man charged in the Arizona January shooting rampage that killed six and injured Congresswoman Gabriel Giffords.  Although Jared Loughner has been charged in the case, he cannot go to trial until he has been declared competent to do so.  There was some indication that, once competent to stand trial, he may claim he is not guilty by reason of insanity.

This begs the question:  what is the difference between competency to stand trial and the insanity defense?  There are three basic differences:

The first difference is the timeframe considered.  Determining someone’s competency to stand trial is concerned with their mental state at the time of legal proceedings and trial.  Whether a person can be found not guilty by reason of insanity is determined by looking at the person’s mental state at the time the crime was committed.  So, competency is concerned with today, whereas insanity is concerned with a distinct point in the past.

The second difference is the standard.  Competency is determined by whether the defendant can understand the nature and consequences of the criminal proceedings against him and whether he can assist in his defense. 

The insanity defense varies greatly from state to state.  Federal courts use the M'Naghten test to determine if someone is legally insane.  The M'Naghten test generally asks whether the defendant, because of a defect of reason, either did not understand the nature and quality of his acts or did not know that his acts were wrong.  (Check out this post for more about the insanity defense and the M'Naghten test.)

The third difference is procedural.  Competency is determined by the judge, and must be considered before a trial can take place.  If found incompetent, the defendant is treated in a mental facility and is periodically evaluated to determine whether he has gained competence. 

Insanity is determined by the jury (assuming the defendant has a jury trial).  It is a complete defense to the crime charged.  The idea is that if a person was insane at the time the crime was committed, he or she is excused from responsibility for the crime, and must be found not guilty.  However, being found not guilty by reason of insanity does not mean he goes free.  Generally, the person found legally insane can be locked up in a mental facility until doctors determine he or she is safe to return to society.


For more on the insanity defense, check out this post.