Question: Why doesn't the Fifth Amendment prevent Bill Cosby from being tried again?

[Towlie]

"... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb..."

I've always assumed the point was to prevent the government from trying over and over again until the defendant eventually runs out of resources and loses.

[DemocratSinceBirth]

1. Because the jury didn't reach a verdict.

[A HERETIC I AM]

2. Because a mistrial isn't a not guilty verdict

[Lee-Lee]

3. Because a hung jury isn't the same as an acquittal

Hung jury means no decision was reached. Is as if the trial didn't happen.

Double jeopardy comes into play when someone has been acquitted and has received a not guilty verdict or is convicted.

[nycbos]

4. Dubble jeopardy applies only when a verdict is reached.

So if you are found not guilty the prosecutors don't get a 2nd bite at the apple. When 12 citizens can't agree on the guilt or innocence of the accused it is up to the prosecutor if they want to retry the case.

[BigmanPigman]

5. I just heard that there will be a re-trial.

The Cosby team is celebrating yet Gloria Allred is going after a new trial with more accusers testifying.

[Lotusflower70]

13. There should be

All those women and the judge only allowed 1 to testify.

[Igel]

27. It's a catch-22.

What the other women would have to say wasn't about that one particular event.

But it certainly would establish a pattern of behavior.

But remember, trials assume the defendant is innocent and due process is largely there to protect the defendant against being railroaded by the government. When you make the opposite assumption, that the defendant is assumed guilty until proven innocent and the government is always on the side of good, it seems backwards. But the same kind of laws that should have applied to a black man accused of attacking a white woman in Georgia in 1905 should apply to a black man accused of attacking a black woman in 2017. That they didn't in 1905 is a stain on US history; that some don't want them to apply in 2017 shows how difficult it is to learn from history.

It's also worth remembering that for many plaintiffs in rape cases witnesses used to be called to "establish a pattern of behavior."

So what if Cosby's lawyer had dug up several guys who said that the plaintiff did the same thing with them--went and had sex, then claimed after the fact it wasn't consensual? Would it matter? Well, it would help to discredit her. And we'd be truly outraged at the irrelevance of the testimony.

[WinstonSmith00]

6. Because the Constitution doesnt really matter

We allow politicians and judges to twist and turn the meaning to fit their own goals.

By a literal reading of the amendment you are correct it should protect cosby from being tried twice for the same offense. The amendment says nothing about mistrials or verdicts or any of the other limitations the politicians in the courts have placed on the amendment.

[obamanut2012]

7. wrong

[WinstonSmith00]

8. Fake news..

Love the deep thoughts there...

[pnwmom]

9. A mistrial is not a completed trial. Without a complete trial,

including a verdict, there can be a retrial.

[WinstonSmith00]

12. Thats not what the amendment says

And the trial was completed both sides rest the case and the jury was hung.

Now if it had mistrialed before the completion of the trial you may have a point but a trial is completed when it goes to the jury and if the jury hangs it should be done as the Amendment says "twice". So doing a second trial violates the 5th amendment. Thats how it should be.

Some judge along the line said well the amendment says no second trial but this was a mistrial so we'll just ignore the word twice because we can interpret the constitution any way we want and we will interpret it in a way that gives us the most power.

The amendment says nothing about trials or mistrials verdicts thats all opinion.

[pnwmom]

16. The amendment doesn't contradict that, and this is long settled law.

https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/mistrials.html

Steps in a Trial

Mistrials

Mistrials are trials that are not successfully completed. They’re terminated and declared void before the jury returns a verdict or the judge renders his or her decision in a nonjury trial.

Mistrials can occur for many reasons:

death of a juror or attorney
an impropriety in the drawing of the jury discovered during the trial
a fundamental error prejudicial (unfair) to the defendant that cannot be cured by appropriate instructions to the jury (such as the inclusion of highly improper remarks in the prosecutor's summation)
juror misconduct (e.g., having contacts with one of the parties, considering evidence not presented in the trial, conducting an independent investigation of the matter)
the jury's inability to reach a verdict because it is hopelessly deadlocked.

[WinstonSmith00]

18. Twice put in jeopardy of life

To me if a trial goes all the way through and its a hung jury a second trial would twice put the defendent in jeopardy.

I think hung juries need to be the same as an acquital otherwise the state can just keep getting different jurors until they find the ones that convict.

I understand the way it is but i dont believe its the way it should be.

[krispos42]

22. So if the defense attorny dies during the trial...

...the defendant should go free?

Or the judge? Or the DA? Or a juror?

What if the judge gets busted for drunk driving? Or somebody has a medical issue?

Or how about a severe weather event?


I think hung juries need to be the same as an acquital otherwise the state can just keep getting different jurors until they find the ones that convict.

No... they can keep going until they get one that reaches a verdict.

If it's not guilty, then the defendant walks. If it's guilty, the defendant can choose to be tried again, or can just accept the verdict and do the punishment.

[pnwmom]

57. And yet the states don't keep trying people over and over

because few juries are hung, and only some of those cases are tried again.

[WinkyDink]

26. Finally, you concede it's your opinion only. Laws are interpreted all the time, beyond

the bare-bones Constitution.

[brooklynite]

28. When you become a member of the Supreme Court, you can apply that reasoning...

Until then, every Judge and Lawyer recognizes "double jeopardy" as applying to an acquittal in a completed trial.

[Adrahil]

47. The key words are "To me"

Your expressing an opinion. That opinion is contrary to settled law. A mistrial can occur for many reasons... and when a mistrial is declared, the trial is deemed incomplete. End of story, really.

[WillowTree]

52. ".......until they find the ones that convict." Or until they get one that acquits. You forgot tha

You apparently forgot that's also a possibility.

[Locutusofborg]

59. Members of the Klu Klux Klan

could kill blacks and civil rights workers with impunity for generations and local juries would often hang because there was always a Klan sympathizer on the local jury. When the perpetrators were retried in federal courts, convictions were much more likely.

[Lee-Lee]

34. We had a case here recently that went like this

It was the trial of a "church" leader that was essentially "beating the gay" out of people they suspected were gay.

The trial went all the way through, the prosecution and defense rested. Then on the second or third day of deliberations a juror brought into the deliberations printouts of outdated case law he had researched at home.

It was an immediate mistrial.

Lots of things can result in a mistrial. Including misconduct by a juror and a juror sabotaging the trial.

If we went your way you could have a person deeply biased who makes it on a jury and holds out allowing a clearly guilty person to go free, and without any chance for a retrial.

As an example, let's say it's a case of a white man raping a black woman. A deep racist makes it on the jury and decides that it shouldn't be a crime for a white man to rape a black woman and he hangs the jury. Should that rapist go free treated the same as a big guilty verdict?

[MurrayDelph]

44. When the defending attorneys began pushing for a mistrial

the judge explicitly asked Cosby if he wanted that, informing him that should the prosecution re-file the charges it would NOT constitute double jeopardy.

[liberalhistorian]

21. Absolutely wrong, and you're showing your ignorance

of the law. In cases of mistrial, or hung juries, double jeopardy does NOT apply because there wasn't a verdict. If he'd been acquitted in a verdict, then he could not be retried, but that would only apply to this specific offense.

The law isn't what you want or think it should be and it is not a travesty because it isn't. This is well-established law, whether you like it or not. And something isn't "fake" just because you don't like it.

[Jake Stern]

25. You want a literal reading of the constitution?

Aside from the Scaliaesque sounds of that there are a few things you would say bye bye to:

-Privacy in the bedroom
-Abortion (Roe was based on a fairly loose reading of the constitution)
-Secular state government (A literal reading only stops CONGRESS from establishing a religion not the states)
- Miranda Rights (The rights to silence and counsel are written nowhere in the constitution)

[BzaDem]

29. What if the defendant put a hit out on the judge or jury during deliberations?

According to your reading of the Constitution, would a retrial be prohibited?

[Voltaire2]

43. He hasn't been tried once.

A mistrial is an "incomplete". Effectively, and this was true when the constitutional was written and the bill of rights ratified, a mistrial is a non-event.

There is gross abuse of the 5th prohibition of double jeopardy, prosecutors frequently find new and different charges, or the state vs federal loophole is used, mistrials are not an abuse.

[WillowTree]

51. Try looking up the definition of the word "mistrial".

[fleabiscuit]

55. That's magical thinking.

If your rubber fails you're still going to be responsible for child support even though you didn't want it.

[Mike Nelson]

10. The trial never...

...reached completion. I think the 5th Amendment means: if he was found not guilty and videotapes supporting the accuser's story surfaced, Cosby could not be re-tried for the same offence because he was not found to be guilty.

[ret5hd]

11. Because the Supreme Court said so in 1824 (United States v. Perez)

So it's been that way for a while.

[Deuce]

14. Yep....

[WinstonSmith00]

15. Exactly politicians in the courts

Interpret the Constitution and we just accept it because its just the way its always been never mind the literal reading its only the interpretation that matters.

[brooklynite]

33. Isn't it amazing that no defense attorney ever applies your argument?

[Nevernose]

40. Because that's how courts work

Interpreting the law is really kind of their whole schtick and had been since Rome was a republic.

[Warpy]

17. Double jeopardy applies to being found innocent of a crime

and then retried for the same offense at the court's convenience.

A hung jury/mistrial means the trial wasn't completed. He can be retried until a verdict is reached, whatever it is.

[WillowTree]

53. And, in some cases, the acquitted defendent can still be tried again.

I don't know all the rules that apply, but there have been cases where a person is acquitted in a state court and then charges are brought again for an infraction against a federal law against the same act. Don't think it happens often, but I know that it does happen.

[Nitram]

19. He is not "in jeopardy of life or limb." Capital punishment is reserved for murder.

[liberalhistorian]

20. There was no verdict rendered,

it was a mistrial. Therefore, he can, and likely will, be tried again. If there'd been a verdict of not guilty, then double jeopardy would apply and he could not be tried again for this specific offense. Doesn't mean he couldn't be tried for any of the other offenses he's been accused of, though there've been no formal charges in those allegations.

[Towlie]

23. Okay, okay. I'm with WinstonSmith00 that it's wrong even if the Supreme Court sees it that way, but

It should be no surprise to any of us that the Supreme Court can make decisions that fly in the face of the Constitution. They've ignored the clause that says "A well-regulated militia being necessary to the security of a free state...", they've concluded that putting "In God We Trust" on our money is not an establishment of religion, and so on.

So what was the point of our Founding Fathers requiring that "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb..." if not to ensure that the government is prevented from trying over and over again until the defendant eventually runs out of resources or gets the wrong jury and is finally defeated? What if a second trial results in a similar conclusion? Can they try a third time, and a fourth? If they weren't trying to prevent that sort injustice, what WERE they trying to prevent?

[BzaDem]

32. They were trying to prevent retrial after an acquittal. n/t

[Nevernose]

38. Bill Cosby hasn't had a trial yet

He's had PART of a trial. He hasn't actually been in jeopardy yet.

The point of that amendment is to prevent the government from ignoring a trial's results and keep having trials until they get a guilty verdict. But in this case, there haven't been results.

[mythology]

42. Let's suppose instead of a hung jury, it was caused by the death of the judge

That gives an incentive to the defendant to kill a judge.

Less malevolently, it also gives the defense incentive to intentionally cause a mistrial if things are thought to be going poorly.

[beachbum bob]

24. It was a mistrial..not a verdict as others have stated

[MichMan]

30. Multiple accusers as well

Like others have said it was a mistrial. But since there were multiple accusers, I would imagine that he could be tried individually for each one.

How come there was such a racial divide on the OJ trial, but that doesn't seem to be the case here?

[mythology]

45. Doubtful, the charge in this trial barely made it under the statute of limitations.

Many of these claims were from a long time ago.

[Blue_true]

68. He can only be tried twice for the same offense.

The problem the prosecution has convincing a jury to sentence Cosby to what likely would amount to a life sentence for rape is the time delay between the charges and the acts along with several of his main accusers associating with him after the first alleged act. I lean toward him being guilty, but if I was on a jury with 11 other people, I can see how some decent people could come to a different conclusion.

I would guess that the jury in a retrial will also hang unless prosecutors find an accuser that went to police or confidantes after the first act and never again associated with Cosby.

[H2O Man]

31. Because.

[brettdale]

35. for argument sake if someone was found not guilty for murder

Then a video recording of them doing the murder came to light, can a person
be retried then?

[H2O Man]

36. Not on

the same charge.

[brettdale]

39. oh so techinally

If they were originally charged with 1st degree murder, they could now charge them
with second degree murder?

[H2O Man]

41. Here's an example

from real life: when the KKK murdered black citizens in the 1960s, they knew no jury "of their peers" would convict them. Thus, the federal government tried them for denial of civil rights.

It's not a technicality in any sense. It is hard to get around.

[alcibiades_mystery]

48. No

The same evidence would be used to prove the 2nd degree murder, so it would be considered the same offense. Settled law since the 1930s.

[WillowTree]

54. No. Once acquitted, they can't be tried again for the same *act*.

[Yo_Mama]

37. It's a mistrial rather than acquittal, meaning that he has never been legally in jeopardy yet.

Until judgment has been rendered (a verdict has been delivered) the defendant is still just being prosecuted.

The "put in jeopardy of life or limb" is complete when a verdict is delivered. None has been yet.

[Hassin Bin Sober]

49. I don't see how you can say the defendant is not in jeopardy when they had a case presented...

... against them in front of a judge and jury and the jury deliberated the defendant's fate.

A couple votes the other direction and the defendant is toast. Sure looks like jeopardy to me.

Sure, if there is jury tampering or other misconduct or unforeseen circumstances, it could be a mistrial. In reality, these cases usually means another bite at the Apple for the state, a new jury, and a new case tailored based on polling the jury to see where the state went wrong.

And just because it's been like that for 90 years doesn't mean it's right. As a gay man getting married I call bullshit on that logic.

[Demsrule86]

46. If it is a hung jury, the person can be retried. Also,

You can charge a person with state and have an acquittal and still try them on federal charges...although that does not apply in this case...Simpson is a POS...so sad. Loved that guy for years.

[Towlie]

62. Did you just confuse Bill Cosby with O.J. Simpson?

Demsrule86 wrote:

"You can charge a person with state and have an acquittal and still try them on federal charges...although that does not apply in this case...Simpson is a POS...so sad. Loved that guy for years."

[customerserviceguy]

50. I agree with everybody who says that Cosby can be tried again

But, his defense team has already seen the prosecution's case, and will be better able to respond to it the next time around. That's the main problem with retrying a case after a mistrial.

[Towlie]

63. Yes, the defense has seen the prosecutor's case, but the prosecutor has also seen the defense...

... and, as you say, "will be better able to respond to it the next time around."

We're in agreement that a retrial is problematic, but your argument is one-sided. Also, nobody here disputes that Cosby can be tried again. The debate is about whether or not it's fair and constitutional.

[Blue_true]

69. This will make some mad, the prosecution had a weak accuser.

She most likely was victimized, but she continued to associate civilly with her attacker. This is one reason why it is so hard to convict in husband-wife or parent-child rapes when the victim does not make a complete break with the attacker after the first case of rape.

[Shrike47]

56. In Scotland, juries have long had 3 possible verdicts, one being 'not-proven.'

In other words, 'we think you did it but there was insufficient evidence presented to convict.'

The Constitution and Bill of Rights were based on a long tradition of English Common Law. For our system to work, the law needs to be applied systematically and consistently.

[Locutusofborg]

58. U.S. v Perez

United States v. Josef Perez, 22 U.S. (Wheat 9) 579 (1824) is a case of the Supreme Court of the United States. The decision held that when a criminal trial results in a hung jury, the Double Jeopardy Clause of the fifth amendment does not prevent the defendant from being retried.

There's been 193 years worth of Supreme Court rulings to reverse US v Perez. It hasn't happened so that holding stands.

[Gothmog]

60. No final verdict and jeopardy had not attached

[DemocratSinceBirth]

61. There is one check...

If the jury deadlocked 11-1 in favor of acquittal as opposed to 11-1 in favor of a guilty verdict it is much more likely the state won't try the person again.

[Buckeyeblue]

64. Aren't there some instances

When a mistrial can lead to charges being dismissed with prejudice, where the double jeopardy rule would apply? I seem to remember one of the Kevorkian trials ending that way.

I think it is shitty that the state can continue to try to prosecute repeatedly. It seems an unfair advantage to be able to redo when they know the defense strategy.

I realize this could lead to guilty people going free. But I'm more comfortable with the guilty going free than the innocent spending one day in prison.

[Adrahil]

65. OTOH...

We do not want to create a situation where any mistrial results in attaching double jeopardy... that would create an incentive for defense teams to encourage mistrials.

[Adrahil]

67. Not 100% sure, but...

I think certain kinds of prosecutorial misconduct can lead to a mistrail with charges being dismissed with prejudice.

[NobodyHere]

66. If a charge gets dismissed with prejudice, it can not be refiled