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Double Jeopardy

Alan Dershowitz Discusses Double Jeopardy Clause in Fifth Amendment

General Information

Source: NBC Today Show Resource Type: Video News Report

Creator: Katie Couric Copyright: © NBC Universal, Inc.
Event Date: 10/05/1999 Copyright Date: 1999
Air/Publish Date: 10/05/1999 Clip Length 00:03:34

Defense attorney Alan Dershowitz talks about the concept of double jeopardy, whereby a person cannot
be tried twice for the same offense.

Double Jeopardy, Alan Dershowitz, Constitution, Fifth Amendment, 5th Amendment, Due Process of
Law, Due Process, Jurisdiction, Criminal Cases, Constitution, O.J. Simpson, Crimes, Liberties, Rodney
King, Federal Government, Appeals, Supreme Court, SCOTUS, Trials, Jury, Juries

Defense Attorney Alan Dershowitz Discusses Double Jeopardy Clause in Fifth Amendment
KATIE COURIC, co-host:
The most popular movie in America two weeks running now is "Double Jeopardy." It's loosely based on
the theory that you can't be tried for the same crime twice.
But just how realistic an idea is that? Alan Dershowitz is a Harvard law professor and author of the
current novel "Just Revenge."
Hey, Alan.
Mr. ALAN DERSHOWITZ (Defense Attorney): Hi.

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COURIC: So, is that a realistic notion? Would it be permissible for someone to commit a crime, as--as she
does in the movie, because you can't be convicted twice for the same crime?
Mr. DERSHOWITZ: Don't try it at home. No. It wouldn't work at all. Look, any lawyer could make the
argument--25 years ago, I appealed a case and I actually won it. A guy tried to shoot somebody who he
thought was alive, but was actually dead. And the court ruled that man dies but once and acquitted my
man of murder charges. But today, the law on double jeopardy has become very restrictive. It has to be the
same transaction. The same event. It even has to be in the same state.
Remember the Rodney King case? When a jury acquitted the policeman of assault in California. Then
they retried the policeman for the same events, but federally. And they were still convicted. So the guy
who was the legal adviser to this film missed my class on double jeopardy, I think.
COURIC: But the fact is the Fifth Amendment states in part, a person cannot be put in double jeopardy
for the same offense by the same government.
Mr. DERSHOWITZ: That's right. And that's exactly right.
COURIC: So, give us an example of--of double jeopardy, another example of double--double jeopardy
working that you might use in your classroom for some of your law students.
Mr. DERSHOWITZ: Well, if a person is acquitted of killing somebody, and then they get new evidence
that he, in fact, did it, they can't try him again.
COURIC: So O.J. Simpson, for example, couldn't be tried again for the murders of Ron Goldman and
Nicole Brown?
Mr. DERSHOWITZ: That's right. Though they could, if, he, for example had testified and they believe his
testimony was false, they could have convicted him or at least tried to convict him of--of perjury.
COURIC: What if a new witness, Alan, would come forward and say, `I actually was there, I saw it, and
now I want to talk about it.'
Mr. DERSHOWITZ: No, they couldn't do that. Except if they could find, for example, it's now a new
crime, a federal crime, it's before the Supreme Court yesterday, about you violate a federal statute if you
abuse a woman for purposes of sex discrimination. That's now a federal crime. And you can convict
somebody a second time of essentially the same crime if you can make it into a federal crime, rather than
a state crime.
But, in general, the rule says that if you've been acquitted or convicted of the same offense, the same
jurisdiction, a state, the same federal government, can't try you twice.
COURIC: Now, I--you--you've seen the movie, right, Alan?
Mr. DERSHOWITZ: I have not seen the movie. But everybody has been asking me about it.
COURIC: You were supposed to see the movie last night.
Mr. DERSHOWITZ: I know, I...
COURIC: You did not do your assignment, professor.
Mr. DERSHOWITZ: Unprepared.
COURIC: But in this case, she--she gets framed for committing a crime that--that she never committed,
basically. So is that any different?
Mr. DERSHOWITZ: It is a little different. She could probably get some credit for the time she served

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falsely. But if they, for example, the police or the prosecutor would overhear a conversation in which she
manipulates the system and deliberately kills because she's been told she could get away with it, she might
not even get credit for the time she served. There are two separate incidents. She was falsely accused the
first time. And maybe she can sue for that or get some credit. But then she committed an entirely separate
or at least planned to commit an entirely separate crime the second time. And there's just no defense of
double jeopardy for doing it the second time.
COURIC: All right, Alan. Thanks a lot.

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