Time Travel, Resurrection, and Double Jeopardy

This is an issue raised tangentially by The Kingdom, a sort of spin-off storyline from Kingdom Come. The basic premise is that a villain kills Superman, then goes back in time and kills him again. And does this at more-or-less regular intervals back down the timestream.

The set up suggested at least a possible interaction with double jeopardy, prohibited by the Fifth Amendment, in that we’re looking at a situation where a defendant could potentially be charged more than once for killing the same person. On that note, we’re also going to look at the possibility of a defendant killing someone, the victim rising from the dead, and the defendant killing them again, as it seems factually similar.

I. Double Jeopardy

We discussed double jeopardy briefly here and here, but those posts were focused on two aspects of the double jeopardy concept unrelated to the issue here, i.e., jury tampering and an exception to the prohibition against double jeopardy in situations of foul play. So it’s worth setting forth a more rigorous discussion of what is actually in view here.

The Supreme Court has interpreted “double jeopardy” to mean four basic things: (1) being retried after an acquittal, (2) being retried after a conviction, (3) being retried after certain kinds of mistrials, and (4) being punished more than once for the same offense.

The first is what most people probably think of when the concept comes up: if you’re acquitted by a jury, the prosecution doesn’t get a mulligan. Criminal trials are, for the most part, once-and-done.

As to the second, one might wonder why the prosecution would want to try someone for the same thing twice. But consider that a single “criminal transaction” may involve multiple charges and multiple victims. The leading case here is Ashe v. Swenson, 397 U.S. 436 (1970). There, the defendant was charged with robbing seven different people at a poker game. The prosecution decided for reasons unknown to try all of these charges separately. That’s not strictly prohibited, but what happened was that the first case ended in an acquittal and the prosecution marched right on to try the second case. The Supreme Court held that though the prosecution wasn’t technically prohibited from running things this way, it wasn’t allowed to relitigate facts which had been determined by a prior jury. So if the first trial had ended in a conviction, those facts would be largely established in the second trial. But because the first trial ended in an acquittal, and the jury found that there was reasonable doubt as to the presence of the defendant at the poker game, the prosecution wasn’t allowed to ask another jury the same question.

Mistrials are generally not covered by the double jeopardy clause, but like the foul play exception discussed in our last look at the concept, if it’s the prosecution that’s acting badly, courts generally don’t let them take another shot at it. Basically, if the prosecution asks for a mistrial, and it wasn’t because of anything the defendant did, there’s a really heavy burden to overcome to avoid a double jeopardy situation, as the courts basically assume that’s what’s going on.

Lastly, multiple punishments are prohibited. This isn’t just limited to getting more than one term for the same charge. It also includes resentencing once a sentence has been meted out. Clearly, reductions and clemency are possible, but the state can’t impose a higher penalty than the one that’s first been assigned, even if there’s something wrong with the first sentence.

The question is whether any of these come into play if one kills the same person more than once?

II. Time Travel, Resurrection, and Double Jeopardy

The answer is “Probably not.”

Let’s start with time travel. Turns out that depending on how you think the metaphysics of this thing works, there may not actually be more than one murder. If a villain kills Superman today, then goes back in time and kills him yesterday… will today’s killing still have occurred?

We’re gonna drop back ten yards and punt on that one.

But assuming for the purposes of argument that the answer to that question is “Yes,” there’s still two problems. First, there isn’t any obvious reason why double jeopardy should apply. Yes, the defendant is still being tried twice for killing the same person. But really, he’s being tried for killing the same person twice. If a man is charged and convicted of beating his wife, he doesn’t get a free pass to do it again once he gets out just because he’s been convicted of that offense already. If the prosecution can come up with factual allegations that make out multiple violations of the same statute without any overlapping allegations, they can bring as many counts of the same offense as they’ve got instances. So aside from the time paradox problems, the identity of a victim doesn’t really matter, provided the acts of killing said victim are distinct. If he dies twice, you get two charges.

This also covers the situation where person is murdered, resurrected, and then killed again by the same assailant. Different acts, different charges, even if the crime is under the same statute.

III. Evidence

We’ve also got some evidentiary problems. If a defendant asserts a double jeopardy defense, he bears the burden of demonstrating that some of the allegations have already been tried to a finder of fact. In the situation where the defendant kills a resurrected person a second time, that’s going to likely be impossible, as discussed above, as the facts really are different. But in the time travel situation, one wonders exactly how a defendant would even attempt to justify the defense if he’s asserting that a future conviction precludes a present trial. Especially if the future trial no longer will have happened. Or whatever. But simply saying “I was already tried for this!” isn’t going to cut it. The court is going to want to see a docket number, charging documents, etc.

But there’s another evidentiary probl, this one not having to do with double jeopardy. Fed. R. Evid. 404 generally prohibits a discussion of other wrongful acts as evidence that the defendant committed the alleged wrongful act which is the subject of the case. But consider the case of a defendant who kills someone, has the victim rise from the dead, and then kills the victim again, and then gets charged for both murders at the same time. Now we’ve got a situation where the jury is going to hear evidence that the defendant killed the same person not once, but twice. If the prosecutor can prove the first one, the second one is going to be almost a slam dunk.

Defense counsel will probably want to bifurcate the trial to avoid this issue. But the prosecutor could rightly argue that this isn’t a case where a past wrong is being used to prejudice the jury into returning a guilty verdict on a present wrong, it’s a case where the same person is being charged with two different crimes, i.e., no different than a serial killer being tried for all of his murders at once. That sort of thing happens all the time, so a judge is likely to allow it.

IV. Conclusion

So the basic answer is, time travel oddities aside, that there isn’t any obvious reason why a person can’t be tried for killing the same person twice. Not tried twice for killing the same person, but tried for killing the same person twice. There isn’t even any reason why those trials couldn’t all be at once.

40 Responses to Time Travel, Resurrection, and Double Jeopardy

  1. Sadly, I cannot remember the name of the movie, but there is one where the plot centers around a woman who serves a jail sentence for the murder of her husband, and gets out on parole. Tommy Lee Jones plays her parole officer, if that jogs anybody’s memory.

    Anyway, she discovers that her husband faked his own death specifically to get her put in jail. The movie makes the claim that she now has free license to murder him, because she’s already been convicted of that specific crime and cannot be tried again for the same crime. Leaving aside issues with parole violations, is that in any way right, or does the fact that this murder is a separate instance from the one for which she was wrongfully convicted make it valid to try her again? What, if any, impact might the fact that she had already served 6 years on a wrongful murder charge have on her trial or new sentence?

    Obviously, to convict her of murdering her husband “again” once he’s proven to be the same man, her first murder conviction would have to be overturned; is this a case where that would actually work AGAINST her because she would be on the hook for a full new sentence despite having been wrongfully imprisoned before?

    • The movie is called “Double Jeopardy”, starring Ashley Judd, Tommy Lee Jones, and Bruce Greenwood.

    • The name of the movies was… Double Jeopardy. And it’s pretty universally agreed that following the legal advice of a fellow ex-con who’s a disbarred lawyer in for murder is a bad idea…

      • David Johnston

        One thing I wonder is, if a really bad lawyer tells me that actually killing the person I have been convicted of killing is legal, so I say “dur” and go out and whack my recently-revealed-to-be-alive spouse for real…

        Has the really bad lawyer committed a crime?

  2. But what about the possibility that time travel changes the past? If a person is killed on one day, then he’s killed on a previous day, the killing on the previous day changes history so that the other killing no longer happened.

  3. Then, there’s the Double Jeopardy case which was explored briefly in Schlock Mercenary of what happens when someone is sentenced to death, killed, and then comes back again. In that one, due to a gate cloning incident, a man had committed a DUI offense and been sentenced to death (in the future society, DUIs are prosecuted much more viciously because of the sheer difficulty of disabling all of the safety interlocks arguing that someone who drives drunk was purposefully trying to cause mayhem) and the sentence had been performed. His clone was brought in and argued that Double Jeopardy meant he couldn’t be charged with the same crime twice. The judge pointed out that that was true, but he was brought up on two counts, both with a death sentence, and therefore there wasn’t an issue with executing the second punishment.

    I suppose that if this happened in real life, say that the wrong man was executed, or that someone woke up after they’d been certified dead (due to an incompetent execution and incompetent medical examiner), they’d just be put right back into the execution method to “get it right” since obviously they weren’t dead.

  4. The way I heard it explained was that a criminal charge is defined not only by what the crime was, who did it, and who the victim was, but the time and location in which it occurred — which is a necessary component of defining distinct charges of things like assault (if someone beats his wife multiple times) or robbery (if someone holds up the same convenience store multiple times). So the premise of the movie Double Jeopardy was bogus, because her actual killing of her husband was at a separate time and place from the original “murder” she was falsely convicted of. So it would be a separate crime and double jeopardy would not attach. She might get acquitted since it was self-defense, but despite the film’s title, double jeopardy really had nothing to do with the situation.

    So the same principle would apply to the question here. If you use time travel or resurrection to murder the same person at different times and places, those are separate crimes by definition, so double jeopardy wouldn’t apply.

    • That’s actually a good addition. Time and place, while not generally elements of a crime as such, are generally considered to be critical bits of information on the charging documents. If the prosecution can’t narrow that down, they might actually have trouble getting an indictment in the first place. But certainly, if they’ve identified two distinct time/place locales for two distinct murders, the fact that it’s the same victim wouldn’t seem to matter.

      • The time element adds an additional peculiarity, in the vicinity of where you fell back ten yards and punted. If the accused is time-traveling back into the past for repeated homicides, the time of the murder may not yet be “past” relative to the temporal frame of reference of the court. The law seems to frown on prosecution for a crime that has not yet been committed.

      • This is a really good point.

        Say I’m 60. I commit a murder and then travel back 60 years in time. My crime hasn’t happened yet and I am unlikely to live to stand trial.

        Can I be extradited 60 years into the future? Tried now for future events?
        That way I might be able to get away with it until the law is changed. And what if I travel back to a time before my offense was made illegal? Then they probably couldn’t do either.

        Incidentally, I really respect the recent Star Trek movie for completely disregarding the grandfather paradox and therefore for once going for a time travel movie not constrained by it. In it, (spoiler) once you go back in time you’re separate from your future self: it’s possible to alter events so that the future you came from never happened. Unfortunately the rest of the plot wasn’t so good.

      • Someone from the future would have to travel back in time and provide evidence that you commited the crime before you cou8ld be extradited. The same logic applies if you had travelled to an alternative reality as opposed to travelled back in time.

  5. With regards to resurrection, if I kill somebody and he doesn’t stay dead then that is attempted murder. If I kill him a second time then it is obviously two different crimes.

    With regards to time travel, if I can go back and kill somebody a second time then there are obviously two time lines and it becomes a jurisdictional problem: if I am convicted of the second murder, perhaps there are time cops who will come and try to get me extradited to stand trial for the first.

    • Actually, it’d still be murder. We discussed that here. As long as the victim does actually die, then it’s murder, regardless of whether or not he stays dead. Otherwise yeah, it’s just attempted murder, because the victim does, in fact, have to die at some point. There’s just nothing that says they have to stay that way.

      Jurisdiction is the least of our problems with time travel. Before we even get there we have to decide how time travel really works. Does changing the past create a new timeline? Does it replace the old? Can you change the past at all? I dunno. Not going there. But our old piece on the multiverse and res judicata might be relevant.

      • How are you defining “actually” dying, though? Would clinical death count, i.e. someone’s heart and respiration stopping for a few minutes but then being started up again medically? Or would it only be legally defined as murder if the victim was legally declared dead and had a death certificate written up? What if the declaration of death was in error? Would the crime still be tried as murder rather than attempted murder?

      • Martin Phipps

        It is impossible to change the past without creating a new timeline. If you travel back in time into your own timeline then anything you did in the past already happened in your own history. In particular, you can’t kill anyone who is still alive in your own time. Nor can you kill their ancestors. This is called the “grandfather paradox”. :)

        I read the article on killing someone and having them come back to life. I understand that if you are convicted of murder then having them come back to life does not make you innocent of the crime. However it might affect your state of mind the second time: is it really murder if you killed someone before and they came back to life? Wouldn’t you just expect them to come back a second time?

      • Ryan Davidson

        “Clinical death” would count, but cardiac arrest is not the same thing as “clinical death”. The Uniform Determination of Death Act, passed by most states, limits the definition of “death” to irreversible cessation of circulatory and respiratory functions. So if you give CPR to someone and they come back, they weren’t really “dead”. Resurrection is the only option when CPR doesn’t work.

        But you still raise an interesting point about declaration of death. Most prosecutions don’t go forward without a coroner’s classification of a death as homicide. It’s not a legal requirement, to be sure, but getting a jury to believe that someone has actually been raised from the dead is going to be a really tough sell unless you’ve got some kind of official declaration that they were dead in the first place.

      • That whole “irreversible cessation of circulatory and respiratory functions” does seem to run into problems when resurrection necessarily reverses the cessation. If, years or even decades after someone has died, I can restore them to normal circulatory and respiratory functions, is there such a thing is irreversible? If resurrection exists, then there is no irreversible cessation, only unreversed cessation.

        What if I’m the only one with resurrection powers, and I kill someone, resurrect them to prove the point that I can, and then kill them again? You can’t say it’s murder, because they’re not dead, because their cessation of respiratory and circulatory functions is reversible. You can’t even say it’s attempted murder, because I -know- it’ll be reversible, and therefore I cannot have attempted to make it irreversible.

      • Simply having the power to resurrect someone and doing so probably won’t change the fact that it’s still murder. If you are the only person with those powers, it’s even less probable. It doesn’t matter if you ‘know’ that the person will be brought back to life, you still took the action of killing them with the full knowledge that they (even if temporarily) would be dead. What if you intended to resurrect them but your powers failed or you were forced to stop? They would be dead and you would have been the one to kill them. I really can’t see the government changing laws just because one sadistic necromancer says that it should.

  6. With regards to the movie Double Jeopardy, Double Jeopardy applies not because she would be charged with the same offense twice but that she was already convicted of killing him and that would have required him to be dead. She couldn’t be charged with killing him a second time without the first charge being overturned and then she is convicted again but sentenced to time served. It’s too bad it was self defense because she probably wanted the satisfaction of killing him in cold blood.

    What if she hadn’t killed him? What is the charge for faking your own death and framing someone for your murder, forgetting for a moment that he tried to kill her later?

    • But if it’s two different killings at two different times and places, then by definition they are not the same crime, as I pointed out above. That’s the mistake in the movie’s logic — it’s defining double jeopardy as two occurrences of the same type of crime against the same victim, and that’s nonsense, because that would mean that anyone who was convicted of robbing a store once would be free to rob it with impunity forevermore. It has to be the same specific instance at the specific place and time.

      • Martin Phipps

        Yes but in the movie she didn’t actually kill him the first time. Killing him “a second time” proves that she was innocent the first time, hence she would be convicted to time served.

      • That may be true, but it’s not double jeopardy. The point is that the movie defined double jeopardy incorrectly. (And pointlessly, because the references to DJ could’ve been removed without materially affecting the movie’s storyline.)

      • Unless she has a very sympathetic jury I seriously doubt murdering someone simply to prove that they had not been murdered previously is going to get her off. Also that’s not even taking into consideration any other crimes committed during the movie.

      • Double Jeopardy applies to being declared innocent of a crime and not being charged again. Here she was found guilty so it wasn’t the same thing. But she was actually innocent. In real life if you are convicted of a crime you didn’t commit you are let out. Can you then go out and commit that or a similar crime and not be punished? It isn’t the same thing as double jeopardy but it is an interesting question. A judge should take into account the time served but then give a stiffer sentence to take into account the casual disregard for the law. In this case, although she could have been charged with other crimes, the actual killing turned out to be in self defense.

  7. An interesting variant on this – John Brunner’s novel Timescoop has technology which allows the creation of a second iteration of anyone or anything in the past – this is initially used to bring various ancestors of the hero to the present. Eventually two of them get into an argument, and one of them kills the other in a duel. The killer is tried for murder; the hero uses the timescoop to grab another copy of the victim from a few seconds before his death, and produces him in court to give evidence for the killer, saying that he provoked the attack and that a third party had acted in various ways to cause the argument. There’s more to it, but the eventual outcome is acquittal. I suspect that this wouldn’t work in the real world…

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  9. This resurrection thing makes me wonder. One of the main characteristics of killing is its permanence. Once somebody is dead, that’s it. Could a defendant argue that the resurrection transforms this from a killing to an assault or battery? That in effect, he did not kill anyone, but simply knocked them out?

    At the very least, I would imagine that SCOTUS might reconsider its capital punishment jurisprudence and say that the resurrection of the victim takes capital punishment off the table. What do you think?

    • The killer certainly intended for the victim to remain dead and unless resurrection magic or technology is readily available to the public I don’t see it greatly changing penalties for murder.

      • Well, the charge of “attempted murder” carries lesser penalties than actually successful murder, yes? So if the victim was resurrected, and we’re using “permanence” as part of the definition of whether or not somebody died, a good lawyer could certainly argue that a charge of “murder” was clearly unfounded since the victim is not dead and, by that definition, technically never was since he got better. Couldn’t he?

      • It’s made rather clear that he was dead. You can’t bring someone back from the dead unless they were already dead. Admittedly that’s not going by the legal definition of ‘death’ but generally in comics when someone brings someone back from the dead it means that they were in fact ‘dead’.

        If the killer causes them to die then they are dead. I don’t see why the law should care whether or not the victim was brought back to life later on. Additionally the technicality doesn’t help the criminal much. Just because a victim of torture might heal from the injuries doesn’t mean that they weren’t tortured* and just because someone is brought back to life doesn’t mean that they were not in the legal state of death.

        Additionally, as I mentioned, unless resurrection magic or technology is readily available to the public the courts probably won’t care at all. It’s unlikely that the criminal intended for the victim to be brought back to life and even if the criminal had it doesn’t change the fact that you cannot do this sort of thing. Even if the victim was told that they would be resurrected and shown proof of this I doubt the courts would consider it legal for a moment.

        *Please no comments about Guantanamo. That’s more a political matter than a legal one and politics is another beast altogether.

      • Gyre, your point on torture is quite right. Loping off a parademon’s limbs as a means to torture it isn’t likely to impair him for long, or quite frankly be all that tortuous, so any charge related specifically to attempting a permanent impairment is going to be hard to make stick. Remember Actus Reus and Mens Rea here you need to both commit the act, and be of the mind to commit the act.

        This applies to murder as much as anything else. If you don’t actually intend to kill somebody, it isn’t really murder. Whether a jury sees things that way is a separate issue, but from a purely technical standpoint it does make a difference in law, and prosecutors are supposed to respect that. Golden thread and that jazz.

      • If you take a creature (parademon or not) prisoner and proceed to chop off its arm for any other reason than for a necessary medical procedure or because it was attempting to kill you it’s going to be torture.

        Here is the following legal definition of torture taken from Cornell’s website:

        (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
        (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
        (A) the intentional infliction or threatened infliction of severe physical pain or suffering;
        (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
        (C) the threat of imminent death; or
        (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

        So unless the parademon can’t feel pain (which seems unlikely) chopping off a limb probably won’t get past a court. Now if it was done in combat you’ll probably face more leniency, which is why I was using the point of how prisoners are treated. Of course parademons are not humans, but they seem intelligent enough to enjoy the protection of the law.

        As for intent, you can still be charged with different degrees of homicide. Aside from that, if you killed someone with the intent of resurrecting them that probably counts as first degree homicide.

        From Cornell again, here is murder and specifically first degree murder:

        (a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

        In other words if you plan it and carry it out (and most things involving the power to raise the dead involve considerable preparation) then it’s first degree murder. Now if you accidentally hit someone with your car and raised them from the dead, you’re not guilty of first degree murder but of other crimes. So basically you’re probably in a lot of trouble, but not necessarily as much as first degree murder.

      • I think the difference would ride on the “killer’s” state of mind. If he killed the victim with the intent of the victim staying dead and was unaware the victim would be resurrected that would be murder. If the killer knew the victim would be (could be) resurrected I believe it would be a battery since he didn’t have the intent for the victim to stay dead.

        Think of Tommy Lee Jones in Men in Black. He shoots Tony Shaloub’s character in the head knowing full well it would grow back. This would be a battery because he didn’t have the ite t to murder, rather he intended to irritate the alien. Now if a layperson did the same thing without knowledge that the head would grow back, that would be attempted murder since the shooter intended to kill the victim even though in reality there was no way shooting the alien in the head would kill it.

        So back to the resurrected victim, if the shooter knew his actions couldn’t kill the victim permanently, he would lack the mens rea to commit murder.

    • Pilate would loved to have you as his attorney during his arraignment before Saint Peter- “It’s not murder. He’s alive, see? Right over there! Yeah, hey Jesus, tell this dude you ain’t dead!”

  10. So, what happens if a prosecutor goes back in time to retry a case that he just lost?

    • Now that’s an interesting question. Suppose a prosecutor made some key error during the trial (e.g. waived an argument that he or she could have made) that didn’t seem important at the time but turned out to make all the difference. Could the prosecutor travel back in time to warn themselves?

      Actually, I think that would be okay so long as the defendant is only tried once from his or her own perspective. One of the main policies behind the prohibition on double jeopardy is to prevent the state from trying the defendant over and over, continually keeping the defendant in fear of conviction and preventing the matter from coming to rest. But if the defendant only sees a single trial (and the same jury is involved), then I’m not sure there’s a problem.

      (Update): Having said that, there are a few caveats that have come to mind following a discussion with another attorney. For example, suppose a juror wrote a tell-all book after the trial and said “we would have voted guilty if the prosecution had done X.” If the prosecution then went back in time to do so, that would probably be an improper communication between the jury and the prosecution. So there are definitely limits on the kind of information that could be acted upon, although in that case the problem is not double jeopardy but rather a violation of due process or the right to a fair trial.

      • I don’t think that would actually fly. If the prosecutor can keep going back in time to re-try the case, that means they can keep trying to convict you until you get convicted, at which point, you have lost permanently. You on the other hand have to win every single time. A single slip-up and you lose. I’m pretty sure such an uneven playing field would violate your right to a fair trial.

      • I assumed the defense would have equal access to the technology.

        Really it seems like a way to optimize the trial so that both sides put forth their best arguments.

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