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LLB: Alex Trebek and Double Jeopardy

I lost on Jeopardy, baby ...

Oh, hello there! Today on Loki’s Law Blog, we will look into a favorite topic of you, me, and Ashley Judd- DOUBLE JEOPARDY!


Double Jeopardy isn’t just the Daily Double that Alex Trebek hands out on a nightly basis; it’s a Constitutional right and a tired trope of movies and television programs since time immemorial. The concept of it is sound-

Once you get tried for a crime, brah, they can’t try you again.

So now you understand the appeal. Once OJ gets off, he’s golden. When the jury done acquits, it don’t matter what OJ admits. If you catch my drift. And this, like most things in the Constitution, has its foundations in how much we hated King George III. See, here in ‘Murika, we had this abiding belief that we were going to create a country free of tyrants like ol’ George, and that one way tyrants worked is that they would keep tryin’ ya, and tyin’ ya, and tryin’ ya, until they got the result they liked. If they didn’t get you for that murder the first (or tenth time), well, eventually they would!

Of course, that’s fake history. Double jeopardy had been present in various bodies of law for a long time, and the idea was present in Coke and Blackstone (two partying guys who lived in England and wrote a little about the law- FUN FACT THAT MAY BE TRUE- those are pseudonyms, like Learned Hand or Minor Wisdom, and they were named after their drugs of choice, Cocaine and Tar Heroin) long before our FRAMERS, HALLOWED BE THY NAME, wrote the Constitution. But this idea was important enough that it made it into the document; here it is in the Fifth Amendment-

“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”


Awesome, right? If you kill a guy (or an ex-wife and a waiter), and a jury acquits you, you’re free as can be! Or, alternatively, you’re Ashley Judd.

....but, you know, this being all legal and stuff, there will be exceptions (or as your attorney would say “...on the other hand.”). The first, and most important, is the dual sovereign- not to be confused with John Wick, Duel Sovereign. See, here’s the thing. Let’s say that you are acquitted by the State of California for murderin’ some people. Now, assume that the elements of the crimes in question are also a federal offense. Well ... the U.S. Government can totally pursue a criminal case against you, because California is not the U.S., and vice-versa. They are separate sovereigns! A famous example occurred in California (of course) when some of the officers who were acquitted in the Rodney King case were later found guilty of violating King’s civil rights.


Another exception, just discussed on Loki’s Law Blog, is the OJ Simpson rule. Being acquitted of a criminal offense does not protect you from a subsequent civil lawsuit. You’re out of the pokey, but you could still owe a lot of money.

A final issue is finality. Let’s say there’s a hung (heh) jury. Well, you’re not acquitted. The prosecutors can still choose to after you. (There are exceptions to exceptions for certain types of mistrials, and because the law loves exceptions to exceptions).


So, given that double jeopardy isn’t all that and a bag of chips, why don’t we see more prosecutions?

1. It looks bad. If a person is acquitted of a crime, there has to be some real good REASONS to go after them.


2. Arguments. While double jeopardy may not be an absolute bar, as discussed above, it still gives the defendant a lot of arguments and makes any subsequent prosecution harder.

3. Money. Yeah, the government has a lot of resources, but they aren’t infinite. At some point, you want to stop throwing good money after bad (figuratively, and literally).


Related to the idea of double jeopardy are other doctrines in the law dealing with finality, as in, stop it already. Most common among these are res judicata (Latin for “you lost, get over it, stop filing lawsuits”), collateral estoppel (stop bringing up that issue ), claim estoppel (stop bringing up that claim), and judicial estoppel (if you lie to the court one way, you can’t lie to the court a different way later). But those are issues for another time; I have to go watch Jeopardy.

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