Does double jeopardy protect a suspect from the consequences of admitting guilt after being declared not guilty? I heard an anecdote of a suspect having just been declared &quot;not guilty&quot; due to insufficient evidence, then he said &quot;thanks, I won't do it again&quot;. It was used as an example of how dumb some people can be, and how the criminal just got what he deserved... however, can such a thing really happen? Wouldn't the suspect be protected by double jeopardy? (the story is set in a jurisdiction where double jeopardy exists) Is the trial officially over as soon as the judge utters the final decision? Consider the following cases: The suspect carelessly and accidentally admits the crime in the courtroom right after being cleared, like in the example above (&quot;thanks, I won't do it again&quot;) Can the decision be altered ten seconds after it's been made? If so, is such a careless utterance enough evidence to do so? The suspect, having heard about double jeopardy, grins and says openly and voluntarily, right there in the courtroom after the decision: &quot;Haha, in your face! I did murder your wife, but the trial is over so you can't do anything anymore!&quot; Same as 2, but it happens weeks or months after the trial, the suspect boasts in front of witnesses how he did it and got away with it. (and to not make it only hearsay, let's assume that the boasting contained actual information which could have been used as a strong evidence) Would the suspect be protected by double jeopardy? If not, what would be the procedure of doing a retrial or a new trial?
In the US, a person is generally protected from being tried for the same offense twice, but they are not necessarily absolutely &quot;protected&quot;. If a jury convicts a person but the judge enters a directed verdict of not guilty, the prosecution can appeal that action (Wilson v. US, 420 U.S. 332). The reason is that the acquittal could be disposed of on appeal without subjecting the person to a second trial. In contrast, in Fong Foo v. US, 369 U.S. 141 the trial judge ordered the jury to enter a verdict of acquittal. The appeals court rejected the judges basis for ordering an acquittal: but Fong Foo was &quot;protected&quot; because there could not be a second trial (double jeopardy), and it does not follow that the jury would have convicted but for the judge's order. The question reduces to the limited circumstances under which the prosecution can appeal a verdict. For instance, the prosecution can appeal a tre-trial motion to dismiss, and since there was no trial, there is no second jeopardy. Within a single jurisdiction, the only circumstance allowing a second trial involves bribery of a judge (Aleman v. Judges of the Circuit Court of Cook County, 138 F.3d 302), where the basis for allowing a second trial is that defendant was not in jeopardy with the first trial. New evidence does not override a defendant's protection against a second trial, whether it is new DNA evidence or a confession. It does not matter if this evidence arises seconds after the final verdict is entered, or months after. Or even before, but the prosecution was unaware.
You can't guarantee a juror's disregard, and some attorneys might utilize the "once it's said, it can't be unsaid" strategy because they know that the jury will still keep it in the back of their mind even though they've been told to ignore it. But there are checks and balances to prevent a remark having an impact on the final decision: Jury deliberation. Chances are, not all jurors will keep the thought in their mind. The jury gets a chance to deliberate after the case has been presented, and it's very easy for other jurors in the deliberation room to point out they're ignoring that piece of information and not let it influence the final decision. Declaring a mistrial. A mistrial is fully at the judge's discretion, but generally anything that affects the jury's ability to remain impartial can result in a mistrial being declared (for example, if an attorney deliberately said something outrageous to influence the jury when they knew it would be withdrawn, the judge will likely declare a mistrial without much thought). Once a mistrial is declared, the case will be postponed and a brand new jury will be selected that hasn't heard the previous remarks - easiest way to erase it from their minds is to not use their minds.
Defendants cannot switcheroo whenever they want. There are good reasons why this is almost never done. The lawyer in any of these scenarios is violating an ethical duty of candor to the tribunal, if it is done without court permission (which is unlikely to be granted), even if the client suggested or insisted upon the idea. The lawyer would be responsible for his or her client's actions by cooperating in it, rather than calling out his client in open court over the objections of the client to prevent the switcheroo from working, as the lawyer would have an ethical obligation to do. I would not really consider this to be a gray area. The relevant ethical rules and the related official commentaries to them are quite clear, even if they are not absolutely perfectly clear. Those rules create an affirmative duty of an attorney to prevent his or her client from misleading members of a tribunal (either a judge or a jury or both). Cooperating with this scheme could (and likely would) result in professional licensure related sanctions ranging from a private censure to disbarment for the lawyer, just as it did in the linked 1994 case. Also, while a "not guilty" verdict was entered in the 1994 case, the prosecution would have a good chance of success if they demanded that the judge declare a mistrial, and also a good chance of avoiding double jeopardy limitations in this situation, because the mistrial arose from the actions of the defendant trying to bring about the situation. On the other hand, if this trick worked so well that the prosecutors came to the conclusion that their primary witness linking the defendant to the crime was wrong and that the defendant was not actually the person who committed the crime, the prosecutors would have an ethical duty to not attempt to prosecute the individual whom the prosecutors now believed to be factually innocent (the analysis is actually a bit more complex than that, but that is the gist of it). The defendant and the attorney could (and likely would) also each be held in direct, punitive contempt of court by the judge for this conduct, allowing them to be summarily punished by imprisonment or a fine to an extent similar to a misdemeanor violation, on the spot, without a trial other than an opportunity to explain themselves to the judge in a sentence or two each, since it would be conduct in violation of the good order of the court and disrespectful of its rules and decorum conducted in the actual courtroom in the presence of the judge. Each could easily end up spending several months in jail on the spot for that stunt and perhaps a $1,000 fine each, if the judge was sufficiently displeased. There would be a right to appeal this contempt of court sanction, but the contempt of court punishment would almost surely be upheld on appeal in these circumstances. In a case where the criminal defendant faces extremely severe sanctions if found guilty, such as the death penalty or life in prison, and the defense attorney was a self-sacrificing idealist or close family member of the criminal defendant, one could imagine the defense attorney and client deciding that the professional and contempt citation sanctions were worth being punished with, in order to save the life of the criminal defendant, if they also were convinced that this trick would work so well that the prosecutors would be persuaded of the criminal defendant's innocence sufficiently to not insist on retrying the criminal defendant in a new trial. This would be somewhat analogous to an intentional foul in basketball, but with much higher stakes. But, this would be an extraordinarily rare situation in court, because the punishment for this "intentional foul" in the courtroom are much more severe, and because the likelihood of it producing a beneficial result is much smaller. It isn't hard to understand why a successful switcheroo feels morally justified. It prevents a witness whose testimony would have been much less reliable than it actually would have been from being used to convict a criminal defendant who might conceivably be factually innocent. And it might be very hard to discredit the testimony of that witness in any other way in order to prevent a wrongful conviction of the criminal defendant. Eye witness misidentifications are one of the leading causes of wrongful convictions, and are especially common in death penalty cases because jurors are "death qualified" making them more pro-prosecution than a typical jury. Preventing innocent people from being convicted of crimes is one of several important values of the criminal justice system, and this is the instinct that probably motivated the dissents in the professional misconduct process in the 1994 case. But, the court system also strongly values candor on the part of attorneys, and likewise values not having the court systems be used to trip up witnesses who may sincerely think that they are telling the truth even if they are mistaken about the accuracy of their testimony, in a deceptive manner. In this situation, the latter candor consideration usually prevails, because the rules prohibiting this kind of conduct and scheme, which admits no "moral justification" or "necessity exception", are quite clear. In the same vein, a prosecuting attorney can be sanctioned (and has been on at least one occasion in Colorado) for not being truthful in communications to third parties, even when the lies are used to peacefully defuse a potentially deadly hostage situation. For attorneys, the duty of candor and truthfulness really knows no exceptions. Cops, in contrast, however, are allowed to lie in many circumstances to secure confessions or stop criminals.
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.
If the prosecutor (P) knows or strongly believes based on this new evidence that A is innocent, ethically P should start proceeding to have A's conviction reversed or reviewed. But in far too many cases P does nothing of the sort. If P simply files a charge against B and proceeds to try B for the crime, P leaves it open to B's Lawyer to ask &quot;Didn't you already convict A for this crime? what about that?&quot; as part of a defense, which might well embarrass P and lose the case. So P may well choose to file charges against B claiming that A &amp; B acted together as accomplices, even if this requires misstating the evidence, or suppressing part of it. Or, P may simply ignore the new evidence, leaving A in prison and B free. This is unjust, but requires no effort on the part of P, and may seem less likely to raise embarrassing questions about why P got the case against A wrong. P can always claim that s/he did not believe the new evidence. That might even be true, there is such a tendency to believe what we wish to believe. The relative frequency of these responses on the part of those in the position of P here is really not possible to asses. The last two responses involve P suppressing or at least burying relevant evidence, and unless it is brought to the attention of others who publicize it enough that action is taken, it will not be generally known and cannot be tabulated in any statistics. P's office will certainly not respond to any survey which asks &quot;How many times this year did you suppress the true facts to leave in place an unjust conviction you had previously obtained?&quot;
As far as I know, every jurisdiction in America limits perjury to cases of lying under oath. Because it seems unlikely that the driver would be under oath at this point, you would probably lack probable cause to make an arrest. At the same time, many states have separate laws addressing the making of false reports, lying to an officer, etc. I'd imagine most jurisdictions would have a law supporting an arrest for lying at the scene, even if not for perjury.
The double jeopardy clause would prevent you from being retried by the government that tried you for murder (probably a U.S. state). But, you could be tried for fraud and obstruction of justice at the state level, and you could be tried for murder if an appropriate federal offense were located, at the federal level. Often conspiracy to deprive someone of their civil rights is used as a federal offense when there is a state level acquittal, and it isn't impossible to imagine that happening in this case as the victim had a right to the protection of the laws, and the state had a right to enforce the criminal laws, which was deprived in a manner that could be called "under color of state law.'
In the United States, jeopardy attaches to a criminal trial when a jury is empanelled, the first witness is sworn in or guilty plea is accepted. Before that point the prosecution can dismiss the case without prejudice, allowing for charges to be brought again. After that point the prosecution can only dismiss the case with prejudice, effectively resulting in an acquittal and preventing a new trial on the same charges or charges based on the same facts.