Tuesday, July 05, 2011

Can Prosecutors Appeal an Acquittal

I see that a great many people visiting this blog are wondering whether the prosecutor can appeal Casey Anthony's acquittal on murder and manslaughter charges. No, they cannot. The Fifth Amendment to the U.S. Constitution provides a defendant with a range of protections, including the right to remain silent and protection against being retried following acquittal - protection against "double jeopardy":
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In rare cases, a defendant acquitted in state court might be subject to charges in federal court, typically on civil rights charges. That is most likely to happen when the defendant is a state actor, such as a police officer who has been acquitted in state court of a serious crime against a criminal suspect. I do not personally see a basis for bringing federal charges in this case, nor do I expect a federal prosecutor to be interested in attempting a new prosecution.


  1. how can hiding the missing child for 31 days not be considered taking civil rights away? Also, the double jeapardy thing seems to apply to loss of life or limb (capital), but may not apply to the child abuse charges. Why could prosecutors not appeal the child abuse charge?

  2. As I previously indicated, prosecutors cannot appeal an acquittal because it would violate the constitutional prohibition against double jeopardy.

    The problem with trying to charge a civil rights violation would be the inability to demonstrate an intention to deprive somebody of their civil rights. Even if you could show intent to kill, which as you know from the verdict that was returned would not be easy - that's not enough. You would need additional evidence of a civil rights-oriented motive (e.g., "Because of her race or religion").

  3. Actually, they can. It's been done before. If there's evidence the (idiotic) jury was in any way tampered with or coerced, an appeal to overturn the acquittal can be filed.

    1. I need more info on the civil aspect. In 1988 a young girl was raped and murdered the accused was aquitted, my father --in-law was on that jury. forced by the judge to make a decision by 3:00pm that last day. Also there where 2 local lawyers wives on jury four close co-workers of his on jury and many more money-special prosecution and judge please send me info so i can get back with my local prosecutors on this also no DNA was shown to jury NOTHING

  4. At least initially, that would not be an appeal. The prosecutor would normally bring a motion before the trial court asking on the basis that, as the defendant had tampered with the jury, intimidated key witnesses, or committed some other act that tainted the process to the extent that he was not in actual danger of conviction, the verdict should be set aside and jeopardy should not attach. Such motions are exceptionally rare, and there's no reason to believe that such a motion is under consideration in the Anthony case.

    It's also an overstatement that "evidence the (idiotic) jury was in any way tampered with or coerced" would support an appeal. The evidence would have to show both the improper influence and that it affected the jury's verdict.

    An appeal might follow, should the trial court deny the prosecutor's motion, but such appeals are so rare that they are largely a distraction from the underlying issue. Can you even think of a case in which a prosecutor appealed on the basis of jury tampering, let alone one in which the prosecutor appealed? How ancient or obscure is your example?

    You describe the jury as "idiotic" so it's worth remembering, even an obviously erroneous judgment of acquittal implicates double jeopardy.

  5. Interesting subject. Along the lines of the jury tampering hypothetical, what happens if the prosecution believes the trial judge has erred in some area like procedure or mis-applied the law or was corrupt in some way that affected the outcome? I suspect there are avenues the prosecution could pursue (e.g. judicial misconduct charges that theoretically could lead to dismissal and even disbarrment or criminal charges) but if a judge simply makes "wrong" decisions during the trial, the government/prosecution really has no recourse? I guess it's the lesser of the evils.


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