想請教一個中、美法律問題的差異 - 律師工作討論

我自己放的火自己來收拾一下。因推文可能會超過四行所以用回應方式處理，合先敘明。

首先感謝：astr及AREOUL兩位前輩提供相關文獻。AREOUL前輩提到英文維基有關這部電

影條目的說明。我立即前往查閱：

http://en.wikipedia.org/wiki/Double_Jeopardy_(film)，裡面提到法律分析時略稱：

Harvard Professor Alan Dershowitz criticized the movie for misrepresenting

the legal doctrine of double jeopardy, a constitutional right in the United

States granted by the Fifth Amendment.This particular legal doctrine would

not apply to the events portrayed in the film, as it only prevents someone

from being put under trial for the same set of facts twice. Regarding the

movie,the first (fake) killing and the second (real) one would constitute two

different crimes. Therefore,double jeopardy does not apply to them.

接著再到astr前輩指引的 http://ppt.cc/Nzpz 即


http//web.archive.org/web/20080121055135/http://www.straightdope.com/mailbag/

mjeopardy.htm

該文倒數第二段評論這部電影時說：In the eponymous movie,Ashley Judd plays a

woman wrongly convicted for her husband's murder; the man had faked his death

and let his wife take the rap.Judd's character discovers the truth and tracks

down the husband intending to kill him for his betrayal,reasoning that since

she's been convicted once for his murder, double jeopardy would protect her

from prosecution. Not so in real life: a crime, for double jeopardy purposes,

consists of a specific set of facts.Change the facts and you've got a new

crime– the murder of Richard Roe on Wednesday, December 8th, in New York City

is not the same crime in double jeopardy analysis as the murder of Richard

Roe in New York City on Friday, February 5th, even though it's the same victim.

上述說明與我的理解並沒有重大差距，事實不同就構成兩個犯罪，當然不能適用

double jeopardy原則。正如astr前輩所說：「法理到哪裡都差不多 」旨哉斯言也！倒是

我前文推文內所引用的高點黃律師電子報：http://tinyurl.com/28v6kf2，其見解應屬少
數說吧！



再次感激大家的啟發，尤其是astr及AREOUL兩位前輩的指引，解答了我心中多年的疑問！










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