fandomhigh | Concepts of Justice and The Law [Period 4, Class #6, Feb 9]

"Let's start today with a hypothetical," Alex said, as soon as class had started. "A man kills his wife. We arrest him. The defense attorney makes a strong case, and our evidence is weak, so the jury votes 'not guilty.' And so, as soon as the trial is over, then we arrest him and try him again. After five 'not guilty' verdicts, we finally get a jury to convict him, and he goes to jail.

"In the cell next to his, in prison, there's a man who likes to rob banks. He was convicted of robbing the Main Street Bank and sentenced to four years in prison. When he's released, the police arrest him, and once again charge him with that same Main Street Bank robbery. Four years just wasn't enough time. Luckily, we still have all that evidence from the last time. The jury convicts again. He's going back in for another four.

Alex lifted her shoulders. "Most people will object to those two scenarios. In the first case, we're going to drag someone through the court system over and over until we receive the verdict we want, which comes off as an abuse of the government's power. The second is even worse: we're punishing a man twice for a single offense. These situations violate our principles of fairness. Justice isn't always fair, but it should certainly strive for it, where it can.

"As protection against the above, some governments institute a rule against double jeopardy." This was helpfully written on the board. "Double jeopardy means that you can't be prosecuted twice for the same crime, regardless of outcome. The State gets one chance to convict you; either you serve your time, or you walk free.

"Double jeopardy seems more fair than the alternative. But like any solution, it has some drawbacks. Here's one. The first hypothetical: we try the man, and the jury votes 'not guilty.' We don't get a second trial, or a third, or a fourth. The man is now untouchable. He hosts a press conference the next day, explaining in detail how and why he killed his wife. He writes books on the topic, and makes a tidy profit. And the law can't lift a finger to stop him. In the eyes of the judicial system, we had our chance, and we blew it. So a murderer walks free.

"That's only one possibility. What if, after the trial finishes, the police find new evidence? Something which dramatically changes everything we know about this case. Should they have a right to re-try the suspect, in light of our discovery? If a man is found not guilty of murder, should we be able to re-arrest him and charge him with manslaughter instead, for that same offense? And at what point in the trial should jeopardy attach? If it's not until the verdict is rendered, what would stop a prosecutor from withdrawing charges if a case seems to be going badly, so that she can start over with a fresh jury?"

"That's today's topic. Double jeopardy." Alex managed a wry grin. "Let's avoid the puns about game shows, all right?"

Flat | Top-Level Comments Only

When should jeopardy attach to a trial? Do pre-emptive rules (i.e., giving felons a life sentence for their third violent offense, or having sexual predators incarcerated indefinitely to prevent re-offending) violate the spirit of double jeopardy? If we charge a man with assaulting another man during a bar fight, and he is acquitted, but the second man dies from his injuries, should we be able to charge the first with his murder?

"I'd say that yes, the man could be charged but if he was acquitted during his first trial and it was just an assault charge, it's probably going to be difficult to prove murder," said Bod. "Charging him would be an option but I'd hope the attorney arguing the case would have a better game plan than he or she did the first time they went to trial."

"More evidence would help," Alex agreed. "And you're right. It's a step removed, at this point. We need to prove he committed the assault in order to prove he caused the victim's death, and we couldn't do that last time. We'd better have our act together for round 2."

"I don't think pre-emptive rules violate double-jeopardy," Dinah said cautiously. "That's sentencing, not the way their trial goes. As for when jeopardy attaches and starts-- wow. I don't know. That really puts the ball in the prosecution and police's court, doesn't it? Only bringing charges when you're *really* sure you've got enough evidence to convict?"

"Should we be able to lock up criminals that we think will re-offend?" Alex asked. "Let's say that a particular crime carries a high rate of recidivism -- 80%. That's proven, scientifically: 80% of the people we release from jail will commit that crime again. Should we be able to lock all of them away, so that that won't happen? Even the 20% that wouldn't?"

"No. I mean, even if they're a threat, you can't tell which part of the population they'd fall into, and you can't convict someone for what you think they'll do." Dinah shook her head. "Really harsh probation measures, maybe. A lot of monitoring. But you can't lock them up when it's just a possibility, even if it's a strong one."

"Can't the guy only be charged with murder if you can prove the assault in the first place?" Kurt asked. "I mean, otherwise you're trying to argue that he did it... I don't know. With magic, or something."

Alex laughed. "It's more that we're using a loophole to take another crack at the case," she explained. "Hopefully, we'd have new evidence that could link him more clearly to the assault. But he was acquitted of the assault, so we're refiling it as murder."

Kurt pondered that. "You can DO that? I bet you'd have to do some fast talking to get the judge to allow it."

"A lot of fast talking," Alex said. "It's amazing how much being a lawyer has to do with pulling strings and hoping no one saw your sleight-of-hand."

It was easier to rationalize when you were working the system to try to put dangerous criminals behind bars.

"So long as you use your awesome powers for good and not for evil," Kurt replied with a grin.

"I don't know that I'd call myself awesome," Alex admitted, "but I'm damn good at what I do, and I try to serve justice. How's that?"

This question raised Momoko's hackles a bit.

"How can you put someone in jail to prevent a crime? You shouldn't arrest people before they've done something wrong! How do you know that they're going to do something?"

"Well said," Alex smiled. "That's one of the strong arguments against pre-emptive sentencing. You're violating the prisoner's rights. Just because someone has committed a crime doesn't revoke those. Sometimes, people overlook that."

Edited 2010-02-10 03:50 (UTC)

Momoko blinked and blushed a bit. She got one right?

"Exactly. Just because a person did something once doesn't mean that they will do it again. And you can't tell from looking at a person if they're going to commit a crime or anything. All people deserve justice."

Ah!

"And no, you probably can't arrest the man for the murder, because if he wasn't found guilty of the assault, how could he be guilty of the death?"

Awww. Students were so cute when they blushed.

"That's something we'll be discussing later in the term," Alex said. "The rights of criminals. Even the guilty ones, the ones that were lawfully convicted. They still have rights in this society, like anyone else."

Concepts of Justice and The Law [Period 4, Class #6, Feb 9]

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