escaping prosecution because oops

[CuteSlaveLisa]

Thanks, ZC!

So, SD, she can be convicted twice of murdering the same individual - twice? I would've thought that the second attempt might have involved a stake through the heart.

Mind you, the law is Weird, capital W. There was the case of a cop in Toronto convicted in 2016 of the attempted murder of a dead man. It get complicated, but the cop made a righteous shoot (knife-wielding man on a trolley). Those first shots killed him - dead as a doornail. Five seconds later, the cop shot him again. That second shooting was adjudged attempted murder, even though he shot a corpse.

Thankfully I am not a lawyer (although I have to deal with them professionally in RL, for the few I know it doesn't seem like a fun way to make a living) but in a story "He rejuvenated as a Zombie/ Vampire/ Werewolf could be raised as an affirmative defence." ;-)

In RL it could lead to a 72 hour psych hold, but I have heard of those who play the 'crazy card' as psych wards are supposed to be nicer than prisons. Again no first hand knowledge. ;-)

I am hearing Jackson Browne's "Lawyers in Love" in my head for some reason.

Lawerotica?


Love and Kisses

Lisa Ann

 

[gordo12]

Sydney Barringer's Unsuccessful Suicide

Wow, real life stranger than any story!

 

[SimonDoom]

Wow, real life stranger than any story!

That clip is from the movie Magnolia, and it's based upon an urban legend.

 

[gordo12]

That clip is from the movie Magnolia, and it's based upon an urban legend.

Ah, never saw that movie.

Melissa!!!???

 

[Vix_Giovanni]

Thankfully I am not a lawyer (although I have to deal with them professionally in RL, for the few I know it doesn't seem like a fun way to make a living) but in a story "He rejuvenated as a Zombie/ Vampire/ Werewolf could be raised as an affirmative defence." ;-)

In RL it could lead to a 72 hour psych hold, but I have heard of those who play the 'crazy card' as psych wards are supposed to be nicer than prisons. Again no first hand knowledge. ;-)

I am hearing Jackson Browne's "Lawyers in Love" in my head for some reason.

Lawerotica?


Love and Kisses

Lisa Ann

That’s a great point, Lisa. The person would likely be lead to psych hold.

That goes back to my point about capacity; meaning, you can’t be found guilty of certain intentional crimes if you didn’t have the mental ability to form an intent to commit the crime.

But the question of whether or not you’re presumed dead would still come back to judicial notice; meaning that the judge would simply say, “Whether you were or were not once presumed to be dead is irrelevant now because you’re standing here.”

 

[Hypoxia]

Story setup: In some undefined jurisdiction, a powerful family enmeshed in the corrupt local legal system has the young new widow of their patriarch declared dead because plunder. Being deceased, she won't be prosecuted for misdeeds, but also has no more legal protection than a corpse. The populace knows she's a ghost. Invent an excuse for local cops not bothering her.

Now she's free. "She never stumbles, she's got no place to fall / She's nobody's child, the law can't touch her at all," as the Nobel laureate sang. She wanders the city, in-and-out of shops, kitchens, bedrooms, meetings, any public or private space, causing little damage but much consternation to the populace.

Cue the sex scenes.

 

[MelissaBaby]

Ah, never saw that movie.

Melissa!!!???

Dude, it says right there that it's from the movie.

 

[TarnishedPenny]

Lawerotica?

Implausible. Lawyers reproduce by binary fission, like all other bacteria.

In three... in two... in one...

 

[clistenovena]

Also plenty of Loving Wives fodder here - what happens when a woman's husband is declared dead, she remarries, and then the guy shows up again?

Fodder for Lifetime movies as well.

But the question of whether or not you’re presumed dead would still come back to judicial notice; meaning that the judge would simply say, “Whether you were or were not once presumed to be dead is irrelevant now because you’re standing here.”

Well, not necessarily so. This guy in Russia was declared dead. He tried telling the courts, in person, that he indeed wasn't post-mortem. They disagreed with his I-am-standing-here-obviously-alive version.

If you have mistakenly been declared dead, can you be charged with a crime? In what jurisdictions might you escape?

Let's wait to see if Russian dude commits a crime and gets away with it. You'll have your answer right there.

Cue the sex scenes.

~applauds exuberantly~

 

[CuteSlaveLisa]

Story setup: In some undefined jurisdiction, a powerful family enmeshed in the corrupt local legal system has the young new widow of their patriarch declared dead because plunder. Being deceased, she won't be prosecuted for misdeeds, but also has no more legal protection than a corpse. The populace knows she's a ghost. Invent an excuse for local cops not bothering her...

Cue the sex scenes.

Prince Escalus is willing to look the other way and allow the Montagues to dispossess Romeo's widow, but not willing to start a street war with the Capulets, which he believes will occur if harm was to come to Juliet.

Love and Kisses

Lisa Ann

 

[Hypoxia]

Fodder for Lifetime movies as well.

There'll be a tragic medical condition, too.

This guy in Russia was declared dead. He tried telling the courts, in person, that he indeed wasn't post-mortem. They disagreed with his I-am-standing-here-obviously-alive version.

Romania, says the Guardian. And I vaguely recall similar accounts from France, Italy, India, China... We could invent weird/corrupt courts in Lower Slobovia or royal Rotaruta, etc. Or an autonomous foreign cult/colony, somewhere exotic.

~applauds exuberantly~

I'll see how it cooks.

 

[Bramblethorn]

The statute of limitation is the very basis of due process in America, and in the 21st cent many other countries too. If there’s no time left to a crime to issue, you can’t be charged with that crime. That is the very first question that must be asked under due process.

I don't think Hypoxia is talking about old cases though? As I understand it, his question is about crimes committed after the person has been legally declared/presumed dead, perhaps trying to exploit that legal status, so statute of limitations and other time-related considerations may not be an issue.

If the prosecution (the state) can’t identify who you are, they can’t bring a crime against you for the same reason.

But am I right in understanding that "identify" doesn't have to mean "link to a legal name"? Googling on "charged as a John Doe" finds several cases where it has been interpreted to mean simply "the person with this DNA" or "the guy we have in custody".

https://journalstar.com/news/local/...cle_3f1ba485-de32-5c54-9ed7-9ef8a3c652eb.html

"Wednesday, the man was charged as a John Doe with abuse of a vulnerable adult for intentional neglect. According to court records, Gilberto Alcocer isn't believed to be his real name but an alias he goes by...investigators still are trying to piece together the man's real identity..."

Presumably they could do the same here. A couple more where John Does known by DNA profiles were charged in absentia to stop the clock from running out on statute of limitations:

https://www.seattletimes.com/seattl...-charged-in-2008-hammer-attack-on-uw-student/
https://www.cbsnews.com/news/john-doe-dna-based-indictment-a-first-for-d-c-in-hotel-rapist-case/

That said, it's a fun premise for a story and I think a lot of readers would be willing to suspend disbelief. I didn't keep the link but while searching on this question yesterday I found mention of one state whose probate law states that a person who's been presumed dead shall be treated as dead for all legal purposes, which should be enough for Literotica purposes.

(Possible twist ending: immediately after the court battle which establishes that our protagonist is legally bullet-proof, somebody brings up another statute which requires dead bodies be buried or cremated within a certain period of time...)

 

[TarnishedPenny]

’You’re dead, sir ,’ one of his two enlisted men explained.

Doc Daneeka jerked his head up quickly with resentful distrust. ’ What’s that ?’

’You’re dead, sir,’ repeated the other. ‘That’s probably the reason you always feel so cold.’

’That’s right, sir. You’ve probably been dead all this time and we just didn’t detect it.’

’What the hell are you both talking about?’ Doc Daneeka cried shrilly with a surging, petrifying sensation of some onrushing unavoidable disaster.

’It’s true, sir,’ said one of the enlisted men. ’The records show that you went up in McWatt’s plane to collect some flight time. You didn’t come down in a parachute, so you must have been killed in the crash.’

’That’s right, sir,’ said the other. ’You ought to be glad you’ve got any temperature at all.’

Doc Daneeka’s mind was reeling in confusion. ’ Have you both gone crazy?’ he demanded. ’I’m going to report this whole insubordinate incident to Sergeant Towser.’

’Sergeant Towser’s the one who told us about it,’ said either Gus or Wes. ’The War Department’s even going to notify your wife.’

Doc Daneeka yelped and ran out of the medical tent to remonstrate with Sergeant Towser, who edged away from him with repugnance and advised Doc Daneeka to remain out of sight as much as possible until some decision could be reached relating to the disposition of his remains.

’Gee, I guess he really is dead,’ grieved one of his enlisted men in a low, respectful voice.

Catch 22 by Joseph Heller

 

[Bramblethorn]

Mind you, the law is Weird, capital W. There was the case of a cop in Toronto convicted in 2016 of the attempted murder of a dead man. It get complicated, but the cop made a righteous shoot (knife-wielding man on a trolley). Those first shots killed him - dead as a doornail. Five seconds later, the cop shot him again. That second shooting was adjudged attempted murder, even though he shot a corpse.

That seems pretty reasonable to me. If the cop knew the guy was no longer a threat, and didn't know him to be dead, then shooting him (or his body) is indeed an attempt to commit murder.

 

[Zeb_Carter]

I'm not a Double Jeopardy expert. I'm relying on basic publicly available sources. A key element is whether it concerns not just the same crime but the same facts. The second "murder" (the real one) is not the same act -- it's based on completely different facts. So, no, Double Jeopardy wouldn't apply.

In the example you cited the attempted murder was part of the same overall event, so it's a different situation.

Then, too, it happened in Canada, and things get pretty strange up there.

In the US...

No, you can't be tried for the same crime, no matter the circumstances of either crime. Murder falls under the double jeopardy rules. If I was convicted of kill someone and then served my time and then really killed him. I couldn't be convicted of killing him again. They might try me on different charges, but I could never be tried for the murder. Maybe illegal bug extermination, but not murder.

 

[TarnishedPenny]

. Oops

 

[Bramblethorn]

In the US...

No, you can't be tried for the same crime, no matter the circumstances of either crime. Murder falls under the double jeopardy rules. If I was convicted of kill someone and then served my time and then really killed him. I couldn't be convicted of killing him again. They might try me on different charges, but I could never be tried for the murder. Maybe illegal bug extermination, but not murder.

This isn't correct. As Simon said, it's not just the same offense but the same facts.

If you're tried of robbery, that doesn't make you immune to being tried for robbery ever again. It just means you can't be tried for that particular robbery again (barring the usual exceptions). Even if you go back and rob the exact same person in the exact same way, it's still not the same event and double jeopardy doesn't stop you being tried for the second robbery.

Likewise, if you were accused of and tried for murdering John Smith in 1990, and then you really murder him in 2010... "murdered John Smith in 1990" and "murdered John Smith in 2010" are different allegations, and being charged on one doesn't prevent being charged on the other.

The fact that only one of those two allegations can be true might well be grounds for getting the first guilty verdict overturned, but it's not going to get you out of the second one IRL, no matter how it works in the movies.

https://criminal.findlaw.com/criminal-rights/double-jeopardy-what-constitutes-the-same-offense.html

Outside the USA, double jeopardy statutes are often weaker. For instance, Queensland law allowed for a man to be tried again for the same murder, after new evidence emerged.

 

[Bramblethorn]

Hey, Bramblethorn. How’s Paris?

A couple of continents away from me. How come?

 

[TarnishedPenny]

Oops. Mistaken identity. Sorry.

 

[CuteSlaveLisa]

Catch 22 by Joseph Heller

I love the passage where the old Italian man is explaining to Yossarian that age is not measured from birth (in which case he would be old) but in time remaining on earth (the young aircrew are really old because they are so near to thier own deaths).

Love and Kisses

Lisa Ann

 

[SimonDoom]

In the US...

No, you can't be tried for the same crime, no matter the circumstances of either crime. Murder falls under the double jeopardy rules. If I was convicted of kill someone and then served my time and then really killed him. I couldn't be convicted of killing him again. They might try me on different charges, but I could never be tried for the murder. Maybe illegal bug extermination, but not murder.

What Bramblethorn said. You're wrong.

The law doesn't always make sense, but don't start with the assumption that it's insane. What you're proposing is insane. I'm not an expert on this topic, but if you can't cite an example of a court ruling this way then you have no basis for saying this.

Double Jeopardy attaches when someone is charged twice for the same crime arising from the same set of facts. If I'm tried for committing murder of person A in 2000 and it turns out person A didn't die, it doesn't mean I can't be prosecuted for actually murdering person A in 2010. To say otherwise is totally nuts.

The supreme court case of Blockburger v. United States, which I found on Wikipedia, makes this point. The defendant was charged with five different counts of selling narcotics under the same law based on sales to the same third party. Defendant was acquitted of three counts, but retried on the other two. The Supreme court said that Double Jeopardy didn't apply even though it was the same crime and the same parties because it was a separate sale, meaning a separate transaction and separate set of facts.

Murdering person A 10 years after the first phony murder obviously is a separate set of facts. No Double Jeopardy.

 

[MelissaBaby]

The supreme court case of Blockburger v. United States, which I found on Wikipedia, makes this point. The defendant was charged with five different counts of selling narcotics under the same law based on sales to the same third party. Defendant was acquitted of three counts, but retried on the other two. The Supreme court said that Double Jeopardy didn't apply even though it was the same crime and the same parties because it was a separate sale, meaning a separate transaction and separate set of facts.

Each count is legally a separate crime, even if they arise from the same incident. If I sell you a bag of weed and a gram of coke at the same time, that's two separate crimes. If I get acquitted on the weed, I can still be charged for the coke.


Not that I'd ever sell you weed or coke, of course.

 

[Hypoxia]

Not that I'd ever sell you weed or coke, of course.

A free gift is something else. Here, have this illegal chemical!

 

[SimonDoom]

Each count is legally a separate crime, even if they arise from the same incident. If I sell you a bag of weed and a gram of coke at the same time, that's two separate crimes. If I get acquitted on the weed, I can still be charged for the coke.


Not that I'd ever sell you weed or coke, of course.

I did some online searching and found this article, which does a good job of explaining how Double Jeopardy works. For the defense to apply, the charged crimes must be the same offense AND based on the same facts, which would see to support what you are saying, although I'm not 100% sure.

The movie Fracture with Anthony Hopkins dealt with DJ. Hopkins played a man who tried to kill his wife. He was tried for attempted murder and acquitted, but then he took her off life support and died, so he could be tried for murder after the protagonist found new evidence of his guilt. In that case both the attempted murder and murder arose from the same facts (although her death was a different fact) but they were different offenses.

 

[Zeb_Carter]

This isn't correct. As Simon said, it's not just the same offense but the same facts.

If you're tried of robbery, that doesn't make you immune to being tried for robbery ever again. It just means you can't be tried for that particular robbery again (barring the usual exceptions). Even if you go back and rob the exact same person in the exact same way, it's still not the same event and double jeopardy doesn't stop you being tried for the second robbery.

Likewise, if you were accused of and tried for murdering John Smith in 1990, and then you really murder him in 2010... "murdered John Smith in 1990" and "murdered John Smith in 2010" are different allegations, and being charged on one doesn't prevent being charged on the other.

The fact that only one of those two allegations can be true might well be grounds for getting the first guilty verdict overturned, but it's not going to get you out of the second one IRL, no matter how it works in the movies.

https://criminal.findlaw.com/criminal-rights/double-jeopardy-what-constitutes-the-same-offense.html

Outside the USA, double jeopardy statutes are often weaker. For instance, Queensland law allowed for a man to be tried again for the same murder, after new evidence emerged.

Your link doesn't say what you think it says. What it says is that double jeopardy doesn't apply when you commit a crime within a crime.

If you rob a 7/11 and kill the clerk you can be charge with both crimes. That links talks about crimes committed during the same offence. Not crimes done during two separate events.

The links is about crimes committed during the same event.