The Knife found on OJ’s Property and Double Jeopardy

In Blog by Chris Kessel

In a story that has made headlines all over the world, literally, news broke today that almost 20 years ago, a knife was recovered from the property of OJ Simpson.  While the origin of the knife is not totally clear, it is entirely possible that this knife could yield further evidence about the murders of which OJ was accused.

In what was easily one of the most, if not the most, famous criminal trials of the 20th century, OJ Simpson was accused of murdering his wife, Nicole, and her friend, Ron Goldman.  After a 7 month trial, OJ was found not guilty on all charges.  Even though news of the knife is fresh, I have already been asked by many people; what if the knife has Nicole’s blood on it?  The answer is two fold.  With respect to the families of the victims, this may give them some final piece of mind.  With respect to OJ’s criminal case, it means nothing.

The double jeopardy clause of the US Constitution (located conveniently in the 5th Amendment) states that “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”  Translated into today’s English, once you have been tried for a crime you cannot be tried again for the same crime.  Of course, as with anything in the legal world this one sentence is not the final word on this issue.

The double jeopardy clause of the 5th Amendment does not “attach” itself when a person is arrested, charged, or even after they’ve made several court appearances.  At any of these points a case may be dismissed and then brought again.  Jeopardy only “attaches” at two distinct points.  In a jury trial “jeopardy” attaches when the jury is sworn in.  In a bench trial (a trial where the judge sits as the trier of fact and there is no jury), “jeopardy” attaches when the first witness is sworn in before testifying.

But simply saying that a defendant cannot be tried twice for the same crime is not the end of the story.  For example, if a defendant is found guilty of a crime, but the conviction is later overturned because of an error in the trial, the defendant may (and probably will) have to go through the trial again.  The fact that he was already tried once does not mean he cannot be tried again, in this instance.  However, if a defendant is found “not guilty” by a judge or a jury (which obviously happens after jeopardy has attached), then that is the final word and the defendant cannot be tried for the offense again…even if the prosecutor was able to, let’s say, find a murder weapon linking the defendant to a killing.

While this brief synopsis of double jeopardy only scratches the surface of issue of double jeopardy, I hope that it explains why, for the purposes of the criminal case, the discovery of this knife will have no impact on any criminal proceedings.