Dear Straight Dope:
In light of the now-withdrawn book on how O.J. would have killed his ex-wife and friend if he were the killer, an interesting question came to mind. What happens if a person confesses to the crime after they have been found not guilty?
—SDSTAFF Bricker replies:
In the United States, an acquittal serves as an absolute bar to subsequent reprosecution for the same offense. This known as the double jeopardy rule, and derives from the Fifth Amendment to the U.S. Constitution, which reads in part: ” … nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb …” So leaping to your feet as soon as you’re pronounced not guilty and shouting, “You fools! I did it after all!” is reasonably safe. Still, you should be aware of some nuances to this general rule.
An acquittal bars reprosecution not only for the offense but for related subsidiary crimes. That is, if you’re acquitted of murder in the shotgun death of your unfaithful spouse, you can’t be hauled in for a new trial for assault with a deadly weapon, or even for discharging a firearm inside city limits. If, however, you chose to testify in your murder trial and lied, your subsequent confession of guilt may open you up to perjury charges.
The double jeopardy rule applies to multiple prosecutions by the same sovereign, which is to say, the same public authority. The United States operates under a system of dual sovereignty, with the federal government representing the supreme law of the land but nonetheless having limited, enumerated powers, while the states retain independent sovereignty and plenary police powers. This means that an act considered criminal under both state and federal law may be independently prosecuted by both state and federal authorities without invoking the double jeopardy rule. The four police officers charged with assaulting Rodney King learned this lesson – all were acquitted of criminal charges brought by the state of California but prosecuted again in federal court for the same acts, reframed as the federal offense of depriving King of his civil rights.
Since federal law arises from the enumerated, limited powers of the federal government, it may not always offer a second chance to convict. There is no general federal law against murder, for example; murder is a state crime. But if the murder had some link to the federal government, prosecution may be possible. Timothy McVeigh’s bombing of an office building in Oklahoma City earned him a death sentence following a federal trial because the site was a federal office building and federal employees, including law enforcement officers, were killed. Had the federal court acquitted him, the state of Oklahoma could have prosecuted him for the deaths without violating the double jeopardy rule.
Apart from potential criminal liability, collateral civil consequences can arise from confessions after an acquittal – in other words, you open yourself up to a lawsuit. O.J. Simpson is an excellent example of this. Simpson was acquitted of criminal charges brought by the state of California, which failed to prove to a jury beyond a reasonable doubt that he killed his wife and Ron Goldman. But Goldman’s family filed a civil suit against Simpson, in which the standard of proof is the easier-to-reach “preponderance of the evidence.” Civil suits are generally for monetary damages and that was true in this case; Simpson was ordered to pay $33.5 million. He doesn’t face prison, but exposure to millions of dollars in civil liability certainly should count as a consequence.
Other collateral consequences may include parole or probation violations. Admitting that you committed a new crime while you’re on parole or probation is a good way to ensure a revocation of that parole or probation; the double jeopardy rule does not apply there either. If you’re not a citizen, such an admission may also be grounds for deportation, another area unaffected by double jeopardy. Your employer may fire you, even if your employer is the city or state; the mere fact that it’s the government imposing a consequence doesn’t trigger the double jeopardy rule.
Finally, it’s worth observing that in order for double jeopardy to apply, you must have first genuinely been in jeopardy. Cook County, Illinois resident Harry Aleman learned this lesson after successfully bribing Judge Frank Wilson to acquit him on murder charges in 1977. After the bribery came to light, Aleman was re-tried on the original murder charges. He raised a double jeopardy defense to this second trial, but the courts ruled that his first trial was essentially a sham, and jeopardy never actually attached. (Normally jeopardy “attaches” – comes into play – the moment the jury is sworn in, or at a bench trial the moment the judge begins hearing evidence).
Double jeopardy does not, by the way, give you a free pass to commit a subsequent crime if it should turn out that you were unjustly convicted, Hollywood scriptwriter fantasies notwithstanding. In the eponymous movie, Ashley Judd plays a woman wrongly convicted for her husband’s murder; the man had faked his death and let his wife take the rap. Judd’s character discovers the truth and tracks down the husband intending to kill him for his betrayal, reasoning that since she’s been convicted once for his murder, double jeopardy would protect her from prosecution. Not so in real life: a crime, for double jeopardy purposes, consists of a specific set of facts. Change the facts and you’ve got a new crime – the murder of Richard Roe on Wednesday, December 8th, in New York City is not the same crime in double jeopardy analysis as the murder of Richard Roe in New York City on Friday, February 5th, even though it’s the same victim. This seems to confuse people greatly, perhaps because it’s unusual to discuss murdering the same person twice. But a moment’s thought will make it clear: if the charge were, say, aggravated assault, no one would believe that a person convicted of beating Richard Roe to a pulp on December 8th could avoid another conviction for tracking down poor Rich again in February and whaling on him again.
So, confession after a criminal acquittal can carry with it collateral consequences ranging from minor to severe, but the original criminal charge is forever beyond the reach of prosecution.
Send questions to Cecil via firstname.lastname@example.org.
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