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.
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.
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.