by msummers10 on December 29th, 2006

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If a person is found not guilty of 1st or 2nd degree murder, can they then be arrested and charged with felony murder(assuming that they could have been charged with it in the first place)?

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by Angeleve on December 29th, 2006
There are varying degrees of murder, and different states define these degrees differently.

First Degree Murder is the most serious. Most often, first degree murder is categorized as "deliberate" - that is, the defendant made a clear headed decision to kill the victim - and "premeditated" - the defendant actually thought about the killing before it occurred (the period for this can be very brief).

Some states consider killings committed in specific ways to be first degree murder. Although these vary by state, they can include killing by poison, by lying in wait, and by torture.

First Degree Felony Murder - A killing that happens during the course of the commission of a felony, even if the death is accidental, will be considered "felony murder" by most states. However, if the killing happens during certain felonies, again determined by state, it will be considered "first degree felony murder". The felonies most often included in this category are arson, robbery, burglary, rape, mayhem and kidnapping.

MURDER, SECOND DEGREE - In order for someone to be found guilty of second degree murder they must prove the person killed the other person with malice aforethought; and the killing was premeditated. The elements are identical with those for 1st degree murder. The practical difference is the sentences are different. Which crime to charge is usually entirely up to the prosecutor's discretion.

So between these two the difference for the prosecutor will be that they can offer 2nd degree murder to someone that they are bargining with to testify against another person.

Double Jeopardy can be argued and appealed. The Supreme Court has upheld laws allowing the government to appeal criminal sentences in limited circumstances (such as 18 U.S.C. 3742(b)). The Court ruled that sentences were not accorded the same constitutional finality as jury verdicts under the double jeopardy clause, and giving this right of appeal also did not put the defendant at risk of a succession of prosecutions.

Double jeopardy is also not implicated for separate offenses or in separate jurisdictions arising from the same act. For example, in United States v. Felix (1992), the Supreme Court ruled: an offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes."

As another example, a state might try a defendant for murder, after which the federal government might try the same defendant for a federal crime.

The "separate sovereigns" exception to double jeopardy arises from the unique nature of the American federal system, in which states are considered to be sovereigns with plenary power that have relinquished a number of enumerated powers to the federal government. Double jeopardy attaches only to prosecutions for the same criminal act by the same sovereign, but as separate sovereigns, both the federal and state governments can bring separate prosecutions for the same act. For example, Timothy McVeigh was executed by the federal government for murdering eight federal employees with a bomb, but could also have been tried in state court for murdering numerous other persons in the same explosion.

So it is hard to say or answer accurately without knowing the case. But I can say that it is a possiblity that a person can be tries again.
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- Are you a practicing lawyer, Angeleve?
  
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  by ----------- on December 29th, 2006
- some would say I am. But I have a teaching job now , constitutional law.
  
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  by Angeleve on December 29th, 2006
- Great for you! Too bad your expert legal knowledge isn't rated more handsomely here though. If I could, I'd rate ya top, professor.
  
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  by ----------- on December 30th, 2006
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by msummers10 on December 29th, 2006
I'm going to make my question as simple as possible. Maybe it was answered and I didn't pick it out. Maybe it wasn't. I think Angeleve understands more than anybody else what I mean.

1st Degree Murder -- Crime 1
Felony Murder -- Crime 2

Person goes to his enemy's store to kill him and rob him. He kills him(murder). He robs him(felony).

Killing him with intent = 1st Degree Murder
Killing him while robbing him(whether killing him was intentional or not) = Felony Murder

You can be guilty(that is, you DID commit each) of both of them. If you are found not guilty of 1st Degree Murder, can you be charged with Felony Murder, because you aren't technically being charged with the same crime?
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- Good point!! So the answer as I explained if it made any sense is that it is entirely possible that you can be tried again. Say you are prosecuted by the state first and aquitted, you can be charged again on a federal level if the Feds decide they can prosecute you. But if the state tries you for murder once it doesn't usually go for it twice. But it may for something other than the murder. Say for robbery , kidnapping etc. The felony murder I feel is really more of a bargining chip when there is not enough evidence to do 1st degree murder.
  
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  by Angeleve on December 29th, 2006
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by Anonymous on December 29th, 2006
It may be double jeopardy and it may not. it depends on the facts of the case.

In any event, you probably will be sued in civil court for an unjust death, no matter the criminal outcome.
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by AntigoneRising on December 29th, 2006
In which jurisdiction? The laws vary by country. In the United States, the scenario you propose constitutes double jeopardy, and is expressly forbidden by the Constitution.
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- but it can be appealed in some cases. There is no gauarantee of it. The beauty of the justice system is knowing it and using it to the best of your advantage. Nothing is gauranteed.
  
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  by Angeleve on December 29th, 2006
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by JUSTNORMAL on December 29th, 2006
No, murder is a felony and no one can be charged or tried for the same crime TWICE. Its called double jeopardy.
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- I don't think that msummers10 is asking if it is a felony. There is a difference between 1st Degree murder and Felony Murder. See my answer for the differences.
  
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  by Angeleve on December 29th, 2006
- Its still the same crime, which qualifies as double jeopardy. So why could we retry OJ for assault and battery, domestic assault, etc? Once its over it's over except civilly. First degree murder IS a felony.
  
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  by JUSTNORMAL on December 29th, 2006
- yes it is, but Felony Murder is another name given to a charge. It is legal jargon or legal title to a charge. There is a small difference between the charge "1st degree Murder" and "Felony Murder"
  
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  by Angeleve on December 29th, 2006
- I am well aware what felony murder is. Whether it be legal jargon or not, if he was found not guilty on both charges he cannot be tried again, not in the United States anyway. In my opinion there is no room for error here.
  
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  by JUSTNORMAL on December 29th, 2006
- Ahhh my dear that is the beauty of the legal system. Constitution says one thing and the interrpretation of the constition is another. I will give you this, you may not be tried twice for the same crime, however you can be tried more than once for the a different element in the same crime. so who cares how you word it, you will still sit in jail. Say you kidnapp someone and kill them. State tries you for murder... you walk. Feds can then charge you for kidnapping given that you travel across state lines... now you sit in a fed prision where the time is more than it would have been in state prision. So in essence your ass is still in jail!
  
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  by Angeleve on December 29th, 2006
- Feds can charge you the Federal offense of kidnapping, not murder. If someone goes in for murder and at the end they choose first degree or second and he is acquitted he cannot be tried again, that is not the same thing. Alot of criminals and judges care how you word it as does the Constitution. If there is a mistrial or hung jury, then he can go back to be tried till a Jury decides a verdict. Ok lets say a man breaks into a home, rapes and kills a woman. He is first tried for "murder." Lets say he is found not guilty due to lack of evidence whatever. They can charge him for home invasions, forceable rape, assault with intent to murder." But the person who asked the qestion mentioned 2 counts of murder, acquitted. End of story in my opinion.
  
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  by JUSTNORMAL on December 29th, 2006
- 18 U.S.C. 3742(b)).
  
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  by Angeleve on December 29th, 2006
- I tried to read it, but there were numerous articles, and advertisements. If you are talking about appeals, anyone can appeal, as a matter of fact most DO..
  
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  by JUSTNORMAL on December 29th, 2006
- That is just it the appeal process lends the opportunity to bypass the double jeapordy clause.
  
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  by Angeleve on December 29th, 2006
- Ok for example, lets take Scott Peterson, convicted of murdering his wife and unborn child. He received the death sentence. That is an automatic appeal, but that can take up to 20 years but that makes no difference in my opinion. Mark Skakel convicted of killing a girl like 30 years (he is related to Kennedys). It took all those years to convict him. He appealed already but DENIED. You will make a good defense attorney lol
  
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  by JUSTNORMAL on December 29th, 2006
- I have a J.D degree, I am currently teaching, constitutional law.
  
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  by Angeleve on December 29th, 2006
- You can't be charged with the SAME crime 2x. That is double jeopordy. You can be charged with a different crime, or a different jurisdiction. Felony murder and 1st or 2nd degree while all being a murder charge have different names, because of even a miniscule difference, therefore being a different charge, and does not constitute double jeopardy.
  
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  by medicgirl on June 12th, 2008
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Question

If a person is found not guilty of 1st or 2nd degree murder, can they then be arrested and charged with felony murder(assuming that they could have been charged with it in the first place)?

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There were three people charged with 1st degree murder..after a robbery...one person died can they all be charged with it or they all being charged with it or is the news paper just saying first degree murder to refur to felony murder?

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First degree murder and felony murder...after a robbery.....if the news paper said three were charged with first degree murder...against one person.....can they mean that it was felony murder? but just stated first degree murder

Can you be charged with conspiracy or accsory if your charged with the robbery if you can not be charged with the first degree felony murder? cause i cannot be charged with felony murder.....other than robbery what could i be charged with..???please help

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Question

If a person is found not guilty of 1st or 2nd degree murder, can they then be arrested and charged with felony murder(assuming that they could have been charged with it in the first place)?

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