Does double jeopardy apply if the prosecution did a &quot;terrible job&quot;? The point of this question is about how double-jeopardy could potentially be abused. Say that Bob is suspected of murdering Mary. If he is tried for this crime and found not guilty, then he can't be tried again for this case due to Double Jeopardy (if I'm not mistaken). But what if Ivan the Incompetent was in charge of the prosecution for Bob when Bob ended up walking free. Any other prosecutor would've handily had Bob behind bars, but Ivan was just a complete idiot who happened to file the case first. Is any other party not allowed to take Bob to court about this afterwards simply because Ivan the Incompetent got to it first? A mildly related example to consider would be Bill Cosby's case, where seemingly incompetent mishandling of the case resulted in his release, whereas a more proper team would have probably easily gotten him convicted. Lastly, a question about abuse: what's stopping Bob from asking his friend Ivan the Incompetent to prosecute Bob for his crime and do a terrible job at it, so that Bob ends up getting off innocent and can no longer be prosecuted over it due to double Jeopardy? Edit: Can someone get protection under Double Jeopardy for a crime by arranging to be put on trial with fake evidence that is then disproven? seems relevant. But note that I'm asking in particular about whether a very poor prosecution can leave one innocent for life of a particular crime. For example, if Charlie is poor and hires a bad lawyer to prosecute, and loses. But his brother Dave, who's rich and has good lawyers, also wants to prosecute Bob. Is Dave just out of luck because of Double Jeopardy?
The prohibition of double jeopardy is about each sovereign getting only one chance at conviction for the same offence. If the sovereign handles their chance incompetently, they don't get another attempt. (The only &quot;exception&quot; discussed in user6726's answer here: bribery of a judge such that there was no actual jeopardy in the first trial; that exception has not been extended so far to bribery of the prosecutor.) You ask whether &quot;Bob ends up getting off innocent and can no longer be prosecuted over it due to double Jeopardy&quot;? Yes, but only by whatever sovereign conducted the botched prosecution. The prohibition of double jeopardy does not prevent a separate sovereign for prosecuting the accused for the same acts, though, under their own criminal jurisdiction. This is why a person can be charged and prosecuted sequentially in federal court, in a tribal court operated by a Native American Tribe pursuant to its inherent sovereign authority, or in one or more state courts, even for the same acts, and even if the earlier prosecutions have resulted in acquittals. Your wording reveals a potential fundamental misunderstanding of what a criminal prosecutions is in the United States. You say &quot;if Charlie is poor and hires a bad lawyer to prosecute.&quot; But there is no need or avenue for Charlie to hire a prosecutor. The state (or tribe, or federal government) has its own prosecutors and is in charge of the prosecution as the sovereign on behalf of the people.
The Fifth Amendment always protects someone from being forced to testify against themselves if it would implicate them in a crime (see, among others, Ohio v. Reiner, 532 U.S. 17). Any person can assert the privilege, regardless of their role in the trial, with the possible exception of the plaintiff (who is the one person who wanted to go to court). Like always with the Fifth Amendment, they can answer some questions but not others (but if they do answer a question, they need to fully answer it). In civil cases, the Fifth Amendment itself does not keep the jury from making adverse inferences against whoever invoked the privilege; if you refuse to testify, they can assume that it's because testifying would be extremely damaging in that particular case. However, most states have rules against that, and so invoking the privilege in state courts generally works like it does in a criminal case (where the jury basically ignores that the question was even asked). In federal courts, if a case is being heard under diversity jurisdiction (plaintiff and defendant are from different states but the claim is not a federal claim) the state rule is supposed to apply; if the claim is a federal claim, the federal rule applies and adverse inferences are allowed. While the Fifth Amendment can be invoked by anyone, there may be consequences. In many states (where adverse inference isn't allowed), a witness who will just invoke the Fifth and answer no questions can't be called, because it's a complete waste of time. If the plaintiff invokes the Fifth to not answer key questions, then the court can potentially dismiss the case; they have the right to assert the privilege, but their lawsuit might suffer for it. In federal court, another possibility that's been done several times before is that the civil case is just put on hold until the criminal matter is resolved. Sources: “The Fifth Amendment Can &amp; Will Be Used Against You In a (Federal) Court of Law” Taking the 5th: How to pierce the testimonial shield Plaintiff as Deponent: Invoking the Fifth Amendment
Can the prosecutor and/or the judge be sued for dereliction of duty, and for non-uniform application of the law? No. Judges and prosecutors have absolute immunity from civil liability for their actions in the course of their duties in connection with the court process. Prosecutors have effectively absolute discretion in their charging decisions and in their decisions to reduce the charges sought against a defendant (prior to jeopardy attaching when a jury is sworn in). Can the outcome of a bench trial be appealed on grounds that the judge did not inform the defendant of his rights Yes. or that his rights were taken away by unwarranted modification of the charges? No. Incidentally, there is no federal constitutional right to a jury trial in a case where six months or less of incarceration is sought as a penalty, and there is no federal constitutional right to counsel unless incarceration is a possible penalty. The Utah State Constitution distinguishes between criminal matters and non-criminal matters in several respects mostly found in the state's bill of Rights (Article I of the State Constitution) in Sections 8, 10, 12, 13, and 19. But, it is fundamentally the right of the state through its prosecutors to decide what charges to press against someone, and they are well within their rights to change their minds. Often, this will be in your favor because reducing an offense to a civil infraction rather than a misdemeanor will have far fewer collateral consequences related to having a criminal record.
In U.S. practice, double jeopardy protections attach once the jury is seated and this scenario contemplates the change in position arising at trial. A mistrial could be called, or a continuance obtained, if the defendant suddenly claimed an alibi defense, since that amounts of a defendant waiver of double jeopardy protections. But without proof that the witness was tampered with, obtained at the last moment, it can be difficult or impossible to get proof of tampering or to contradict the story with other evidence to undermine the credibility of the witness. The prosecution would probably request a recess in the trial to regroup and try to admit evidence that the testimony changing witness made a prior inconsistent statement to impeach the testimony of that witness, from whomever that witness told the first time (probably a law enforcement officer). But this is still far less convincing to a jury than an affirmative statement from a witnesses about a key fact. If the prosecution could find evidence of defense side tampering and present it to the judge in the hours or small number of days before the trial ends, it might be able to get a mistrial declared. But it is much harder to get a mistrial for witness tampering when the witness shows up and testifies contrary to prosecution expectations than it is when the witness is, for example, killed or kidnapped and doesn't appear to testify at trial at all. But if evidence of neither type could be obtained before the jury was sent to deliberate and evidence was closed, and the jury then acquitted the defendant, it would be very hard for the prosecution to change this result. Perhaps not completely impossible, but very nearly so. The witness could be (and in this circumstance, despite the extreme rarity of perjury prosecutions, probably would be) prosecuted for perjury, but that wouldn't change the acquittal. If a link to the defendant could be found, the defendant could also be prosecuted for witness tampering or obstruction of justice or something similar. But that is hard to prove (and the witness would probably have to be convicted or provided with use immunity for his testimony) to do so. In English criminal law practice, in contrast, the likelihood of having the verdict of acquittal set aside and getting a new trial would be much greater (and the likelihood of getting a recess mid-trial would be greater in far more common bench trials in lower level criminal cases), but it would still be a serious burden for the prosecution that it might not be able to overcome. Lawyers aren't entitled to expect that witnesses will testify exactly the way that they discussed things with the lawyers before trial, and this can be explained away with a variety of excuses that are usually true (&quot;after thinking it over after meeting with you, I realized that I was confused and getting it wrong&quot;), but are sometimes a cover for a change of story that is not sincere. I've had similar things happen a few times in civil litigation and there is only so much you can do about it.
This is normal. It only seems imbalanced because only the prosecutor has been able to call witnesses so far. Under Minnesota Rule of Evidence 611: Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. At this point, only the prosecution has put on its witnesses, so it hasn't had an opportunity cross examine anyone, and the defense has been able to lead because it has only been able to cross examine. Were the prosecutor to call the defendant's wife or mother or something like that, he would probably be permitted to use leading questions. And when the defense puts on its case, the roles will reverse: the defense attorneys will have to use open-ended questioning for any witness he calls, and the prosecutor will be able to use leading questions.
If someone testifying before congress refuses to respond to appropriate questions (questions within the scope of the congressional inquiry), that person can be cited for contempt of Congress. One way to avoid this is if the witness can invoke the Fifth Amendment privilege against self-incrimination. That says that a person may not be compelled to be a witness against himself (or herself) in a criminal case, and has been interpreted to mean that if testimony might in future be used against the witness in a criminal case, it cannot be required, even if the current occasion is not a criminal case. However, if a person has been granted immunity in a particular matter, no testimony can be used against the person in a criminal case on that matter, and so there is no Fifth Amendment privilege not to testify on that matter. This applies to testimony before a court as well as before Congress. The grant of immunity must be at least as comprehensive as the refusal to testify would have been, or the privilege remains. Therefore, if a person has been granted immunity on a subject, that person cannot refuse to testify before Congress by invoking the Fifth Amendment. If the person does refuse, s/he can be cited for contempt of Congress. However, the person can raise a claim that the inquiry was not a proper one, for example because the subject was not a proper one fo Congressional inquiry, or that the Committee was not properly authorized. If the court upholds such a claim, the person will not be convicted of contempt. Also, while Congress can issue a citation, the Justice Department is not required to prosecute the person, and may choose to let the issue drop. Or the court might not convict on some other ground. And of course Congress (or one house of it) has to vote to issue the citation, which it might decide not to do, for political reasons, or indeed for any reason at all. So a grant of immunity alone is not enough to say that testimony will be compelled, but it is a significant step towards such compulsion. Note that under Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964), a state grant of immunity also bars Federal use of the compelled testimony or its fruits, and under Kastigar v. United States, 406 U.S. 441 (1972) a Federal grant of immunity bars state use of the compelled testimony or its fruits. See also This Justia essay on "the Power to Compel Testimony" which covers the whole subject with multiple case citations.
can you hire a witness as your lawyer to exclude their testimony? That is pure fiction and misleading. Unfortunately scenes like that contribute to keep people ignorant about the law, which then makes it easier for courts to dissimulate their recurrent miscarriage of justice. But Purdue University v. Wartell, 5 N.E.3d 797 (2014) is an example where the Indiana courts did the right thing, and is pertinent to your question. There, Purdue University first assigned an investigator in regard to plaintiff's grievance, and thereafter the University tried to withhold information under pretext that the investigator was also its lawyer and thus that the information was protected by the privilege. Because that person hitherto had been portrayed only as an independent investigator, the Indiana courts concluded that Purdue University was estopped from invoking the attorney-client privilege (as well as the work-product doctrine). Thus, the guy in the film or series who said to be "screwed on Kardashian" reflects pure cluelessness about how the law supposedly operates. I have not seen the plot of that film or series, but the information that the friend-lawyer obtained prior to becoming O.J.'s attorney would not be protected by the privilege because it was not obtained in preparation for O.J.'s defense. If there were one star witness on the opposing side and they happened to be a lawyer, could you simply pay them off by hiring them as your lawyer? This question is somewhat unclear to me, but I will mention that lawyers have a duty to disclose to their potential or actual client any conflict of interests. The rules of so-called "professional conduct" discourage lawyers to ignore conflict of interests in that this conflict may impair their "services". And, as I explained previously, any information that a lawyer obtains as witness rather than as attorney in the matter is not protected by the privilege. Thus, as for If you committed a crime at a law-firm and everyone who witnessed it was a lawyer, is there any rule preventing you from just hiring all of them? the answer is: Nothing prevents the criminal from hiring all of them, but that information is not protected.
If you are convicted you can be retried (indeed, on appeal, you asked for a retrial). Double jeopardy prevents retrials in cases of acquittals and some mistrials, not convictions.