Wikipedia:Reference desk/Archives/Humanities/2022 May 6

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May 6

Wrongful conviction for murder

In an episode of Highway Patrol, a man serves his full term (13 years) for a murder, only it turns out the "victim" is alive. The ex-con says he can kill the other guy with no legal consequences because he has already paid for it. What does the law (any major jurisdiction) actually say about this? Clarityfiend (talk) 07:04, 6 May 2022 (UTC)

There are over 50 "major jurisdictions" in the US alone. What answer did the episode give? --←Baseball Bugs ^{What's up, Doc?} carrots→ 07:14, 6 May 2022 (UTC)

None. The guy was caught by Broderick Crawford's character before he could get his revenge. Clarityfiend (talk) 09:04, 6 May 2022 (UTC)

We cannot give you legal advice, but you might be interested to read Double jeopardy. Shantavira|^{feed me} 07:49, 6 May 2022 (UTC)

It's not a double jeopardy situation. That only applies when someone is acquitted. He was convicted. Also, I'm not planning to go to prison and come out murderously embittered (embittered enough without doing time), so I'm not asking for advice, just the legal doctrine. Clarityfiend (talk) 09:04, 6 May 2022 (UTC)

While your first comment is likely correct for the reason mentioned by Iapetus your second seems to be wrong, read the article. For example, it mentions "which may take the specific forms of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted')" and 'The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise, under Article 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country."'. The Fifth Amendment to the United States Constitution simply says 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb', nothing about acquittal and our article on the amendment discusses how this affects multiple punishments for the same offence including prosecutions after conviction. Nil Einne (talk) 10:33, 6 May 2022 (UTC)

I'm just going by what Double jeopardy says: " ...prevents an accused person from being tried again on the same (or similar) charges following an acquittal and in rare cases prosecutorial and/or judge misconduct". It also states that autrefois convict falls under peremptory plea instead. Clarityfiend (talk) 11:25, 6 May 2022 (UTC)

@Clarityfiend: Generally speaking, it's a mistake to come to conclusions from reading a single sentence of the intro of our article/s, especially since we do not guarantee them to be correct in any way, and in fact any experienced Wikipedian can tell you, there are plenty of times when they are not.

Nevertheless, in this case, if you read the article carefully, it says

Double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction.[1] A variation in common law countries is the peremptory plea <snipped>

Notice there is no instead. A variation of the common form of double jeopardy can logically also be called a form of double jeopardy, hence why it's covered in our article on double jeopardy.

Indeed if you read the Peremptory plea article it says

In a criminal case, the peremptory pleas are the plea of autrefois convict, the plea of autrefois acquit, and the plea of pardon. The former two refer to cases of double jeopardy.

so it also acknowledge such pleas, when they related to double jeopardy are in fact a form of double jeopardy.

More importantly, you are referring specifically to the US. Notice in the US section, our article says (with my emphasis)

As described by the U.S. Supreme Court in its unanimous decision concerning Ball v. United States 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial."[63] The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment.[64] Jeopardy "attaches" when the jury is impanelled, the first witness is sworn, or a plea is accepted.[65]

and under the "Multiple punishment, including prosecution after conviction" subsection

The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction.[91] In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was not satisfied,[92] but Grady was later distinguished in United States v. Felix (1992), when the court reverted to the Blockburger test without completely dismissing the Grady interpretation. The court eventually overruled Grady in United States v. Dixon (1993).[93]

So regardless of how you want to read the lead, the double jeopardy article in the relevant section does mention that in the US, double jeopardy can arise in the case of attempts to prosecute someone for a crime which they were always convicted of.

Nil Einne (talk) 13:46, 6 May 2022 (UTC)

Just noticed that beyond the general article on double jeopardy, and the article on the Fifth amendment both of which do cover this as mentioned before, there's a third article Double Jeopardy Clause which also covers this. And yeah like the others, this includes the "retrial after a conviction" part which seems to be causing confusion. Nil Einne (talk) 14:07, 6 May 2022 (UTC)

I'm pretty sure that the actual murder would count as a different crime than the original accusation of murder. That's certainly what would be the case with any other crime: being falsely convicted of robbery or assault or whatever doesn't grant you immunity to prosecution for committing the same crime against the same victim in future, and I see no reason why it would be any different for murder. Iapetus (talk) 10:06, 6 May 2022 (UTC)

Wardog is 100% correct on this. Look at it this way. Say you were convicted of murdering John Doe on 2 March 2000. You serve a 20-year sentence, are paroled, and then find John Doe alive two years later, and kill him on 6 May 2022. Can you be tried and convicted for that crime? Of course you can. You've never been tried for murdering John Doe on 6 May 2022. You were convicted (wrongly, I might add, but that's not relevant to our discussion) of a completely different (albeit ultimately fictitious event). You've never been tried for the killing that took place on 6 May 2022. Take it from John Doe's point of view. Why should you have to die, just because some guy got wrongly convicted of killing you the first time? WTF did you do to deserve that?!? --Jayron32 11:01, 6 May 2022 (UTC)

Most times, John Doe would have had to have framed you and gone into hiding. But I get your point. (I just realized why this plot device sounds familiar; it's in the classic 1946 movie version of Great Expectations.) Clarityfiend (talk) 11:17, 6 May 2022 (UTC)

"...he can kill the other guy with no legal consequences because he has already paid for it." What a truly bizarre idea. In the UK you'd go to the Criminal Cases Review Commission and seek monetary compensation. But I guess if you were in the US, and you got enough compensation, you'd probably go and buy a better gun and do the job properly. Martinevans123 (talk) 14:23, 6 May 2022 (UTC)

If the sentence was only 13 years, it sounds like a manslaughter charge. Pursuing the guy and deliberately killing him would be a premeditated murder charge. --←Baseball Bugs ^{What's up, Doc?} carrots→ 15:03, 6 May 2022 (UTC)

Resolved

I know that this is marked as resolved, but I thought I'd add another fictional example of this trope. In the film People Will Talk, the Shunderson character (Finlay Currie) had been incarcerated for 15 years for killing his friend. (This was in Canada.) After his release, he happened to see his friend alive and actually did kill him then. When he was hauled into court and tried to use the defence set out in the OP's post, the prosecutor "was willing to admit that my first conviction was probably a miscarriage of justice, but even though the first jury had made a mistake, he said, I didn't have the right to commit a murder just to correct that mistake". (He was sentenced to hang, but the hanging left him barely alive, to be saved by Cary Grant.) Deor (talk) 15:22, 6 May 2022 (UTC)

That's the one I was thinking. Got the right actor, but the wrong movie. Clarityfiend (talk) 11:25, 7 May 2022 (UTC)

The common thread would seem to be fiction writers inventing these ideas to make for interesting plot lines. --←Baseball Bugs ^{What's up, Doc?} carrots→ 15:29, 6 May 2022 (UTC)

Yep. Another one is How to Murder Your Wife, but that's a comedy. I should also mention "Time in Advance", a science-fiction short story about a system where a person can legally earn the right to commit murder by serving a long sentence first; but when someone does, things don't go as they expected. --184.144.97.125 (talk) 20:36, 6 May 2022 (UTC)

Ah, you Americans. You're so lucky, you've always got Cary Grant to save you. Martinevans123 (talk) 15:31, 6 May 2022 (UTC)

He says, linking to a film directed by a Cockney in which a woman born in Japan to two Londoners is threatened, not saved, by Archie Leach from Bristol.  Card Zero  (talk) 18:54, 6 May 2022 (UTC)

Legal Bundle

In the UK, for court cases such as employment tribunals, they create a Bundle, which is one document, usually a PDF, with all parties' evidence in it. That made sense when people just had documents and things, but now people have video and audio recordings as evidence. I can't find this online... what is the standard practice for someone to reference a video or audio recording in a bundle? Thanks 2A00:23C8:4384:FB00:F90C:374F:F400:28DF (talk) — Preceding undated comment added 17:43, 6 May 2022 (UTC)

See Practice Direction 31B and Practice Direction 32, para 27.1. Electronic documents to be used in evidence should be listed in the bundle (and disclosed to the opposing party), but do not to be included in the bundle. 194.73.48.66 (talk) 11:30, 9 May 2022 (UTC)

Thank you so much! 2A00:23C8:4384:FB00:354E:690B:4FF5:390F (talk) 23:47, 12 May 2022 (UTC)

Is Trolling Free Speech in the US?

Does the SCOTUS already answered the question if setting a "Troll-Comment" in the Internet can be Free Speech? — Preceding unsigned comment added by 2A02:908:422:9760:0:0:0:D631 (talk) 22:02, 6 May 2022 (UTC)

I don't know that they've ever made a ruling on the matter. But keep in mind that libel, slander, threats,″ etc., are not protected speech. --←Baseball Bugs ^{What's up, Doc?} carrots→ 04:55, 7 May 2022 (UTC)

"Trolling" is such a broad concept that its milder versions would certainly be covered by the free speech provision of the First Amendment. But sustained and prolonged trolling that includes "libel, slander, and threats", especially when the victim has asked the harassment to stop, can clearly cross the line, and be subject to civil or criminal penalties, depending on the specific circumstances. Cullen328 (talk) 05:18, 7 May 2022 (UTC)

"Threats of violence", specifically. And the concept of free speech has been kind of stretched over the years. The First Amendment was intended to be about the right to confront the government. --←Baseball Bugs ^{What's up, Doc?} carrots→ 06:25, 7 May 2022 (UTC)

I think it is immaterial whether the medium through which a challenged utterance is made public is the Internet, a print medium, or radio/TV. If bringing up the concept of "trolling" means mounting the argument for the defence that the challenged utterance was not made in earnest but merely to provoke reactions, the obvious issue is whether any reasonable recipient would have understood that (which would imply that the troller was inept). Compare Alex Jones's attorneys arguing that no reasonable person would believe what he says.^[1] Surely, the validity of such a defence argument can only be decided by the courts on a case-by-case basis.  --Lambiam 09:24, 7 May 2022 (UTC)

Let's not forget: the First Amendment (free speech provisions, etc.) applies only to the government, not to private actors / private companies. Joseph A. Spadaro (talk) 04:01, 9 May 2022 (UTC)

Theoretically - just like the Second Amendment was supposed to be about well-regulated militias. --←Baseball Bugs ^{What's up, Doc?} carrots→ 11:49, 9 May 2022 (UTC)

Also remember: Topix. The Home of Small-town American Trolling... which was taken so seriously by the company that IIRC they charged for taking down libel  :) SN54129 12:42, 9 May 2022 (UTC)

• "Trolling" covers a wide variety of topics, and under the standard Wikipedia Legal Disclaimer, and noting IANAL; under the standard definition of "being intentionally annoying" meaning of trolling, it should most likely be protected free speech. Where it crosses into a gray area is where protracted trolling can come under legal definitions of harassment; some trolling campaigns include things that resemble DDOS attacks, involving things like doxxing or swatting or the like and those likely are not covered by free speech protections. --Jayron32 14:12, 9 May 2022 (UTC)