Very brief summary of the main legally relevant aspects of Fracture: Anthony Hopkins plays a man who deliberately shoots his unfaithful wife (let's call him Hopkins for convenience). The wife doesn't die, but goes into a coma. Hopkins is prosecuted for attempted murder, and is acquitted because of some artfully engineered tricks of his. The judge grants Hopkins' motion for an acquittal because the prosecution's evidence wasn't enough to prove the case beyond a reasonable doubt, even if all its evidence is believed.

Then, Hopkins causes the wife to be removed from life support (since he's still her next-of-kin and is allowed to make such decisions; ignore for now whether he might be denied such status, perhaps on the grounds that his culpability in her death could be proved by a preponderance of the evidence or even clear and convincing evidence, even though it wasn't proved beyond a resonable doubt at the criminal trial). Hopkins gloats, because even if the prosecutor could afterwards find some evidence against Hopkins, Hopkins is off the hook because of the prohibition on double jeopardy.

But wait! The prosecutor (Ryan Gosling) does uncover some evidence he didn't find before, and some he couldn't find before (the bullet that was in the wife's body, and that apparently couldn't be removed). He then prosecutes Hopkins for murder, since the wife is now dead. Because Hopkins is being prosecuted for a different crime, the double jeopardy bar is inapplicable, and all Hopkins' plans are undone. Neat. The movie ends with everyone expecting Hopkins to get his just deserts at the criminal trial.

Except I think the filmmakers got the law wrong here. I'd appreciate it if people who are familiar with the precise legal doctrine I'm about to discuss can correct me if I'm wrong, but here's my thinking.

It is true that there is precedent for the proposition that the normal double jeopardy bar (you may not be tried twice for the same crime) doesn't apply if you are convicted of crime A that arises out of a certain event, and are then tried for crime B that is similar, yet the elements of which weren't provable before. A classic example, upheld in People v. Bivens, is when someone is convicted of attempted murder, the victim dies from the wounds, and then the defendant is tried for murder. (The opinion in People v. Bivens can be glipsed in the movie; do not confuse this with the more famous U.S. Supreme Court Bivens case related to constitutional torts.)

But the Double Jeopardy Clause has been interpreted by the Court as barring more than just two trials for the same offense (the criminal law analog of the civil doctrine of res judicata, or claim preclusion). The Court, in Ashe v. Swenson (1970), held that the Clause also applies to criminal cases the principle of collateral estoppel (analogous to the civil doctrine of collateral estoppel, or issue preclusion).

Under this principle, once there is an acquittal -- and it doesn't matter whether it's an acquittal by a jury or a judge -- the prosecuting government is bound (in any future criminal trial of the same defendant) by the facts necessarily found in the defendant's favor by the earlier acquittal. In the Court's words, "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."

So how does this play out here? The prosecution's theory in the first case was that Hopkins tried to kill his wife. The acquittal concludes that the prosecution did not prove this claim beyond a reasonable doubt; it finds the fact in Hopkins' favor, or to be precise finds that the fact has not been proven beyond a reasonable doubt.

The prosecution's theory in the second case was that Hopkins tried to kill his wife, and then the wife died some time later. The trial is for a different offense -- murder, not attempted murder. There is thus no pure double jeopardy / res judicata / claim preclusion. But to convict Hopkins would require the prosecution to prove the very factual assertion rejected at the first trial -- to show beyond a reasonable doubt that he tried to kill his wife. The government is collaterally estopped from proving this, so there is collateral estoppel / issue preclusion. Hopkins is thus entitled to an acquittal even at the second trial.

Does it matter that the first trial didn't prove that Hopkins didn't try to kill his wife, but found only that the government hadn't proven beyond a reasonable doubt that he tried to kill his wife? No -- in all criminal cases, an acquittal proves only that the government couldn't prove the facts beyond a reasonable doubt. The point of the criminal collateral estoppel principle is that the government's failure to prove certain facts beyond a reasonable doubt in one case means it can't prove the same facts beyond a reasonable doubt in a later case against the same defendant. (If the government were trying to prove Hopkins guilty by a preponderance of the evidence in some civil action, collateral estoppel wouldn't bar that, because a fact may not be proven beyond a reasonable doubt but still be provable by a preponderance of the evidence; but that doesn't apply here. Also, if a different government -- say, the federal government rather than the state government -- tried to prosecute him, then it wouldn't be barred either by the collateral estoppel principle or the pure double jeopardy principle, but that's not applicable here, likely because Hopkins' murder of his wife wasn't a federal crime.)

Does it matter that at the second trial the government wants to put on newly discovered evidence that it lacked at the first trial? No, the whole point of the double jeopardy guarantees is that the government is stuck with the results of the earlier acquittal, even when it has more evidence than it had at the earlier trial.

Does it matter that the first trial ended in an acquittal by the judge rather than by a jury? No, since the judgment was an acquittal on the grounds that the government hadn't presented enough evidence to convict the defendant beyond a reasonable doubt. (If the judge had granted a new trial after a guilty verdict on some grounds other than insufficiency of the evidence, the new trial would be permitted, but an acquittal on insufficiency-of-the-evidence grounds is treated like a not guilty verdict.)

So unless I'm mistaken, Hopkins is off the hook, and Gosling's cute "I'm not retrying him for attempted murder, I'm trying him for the first time for murder" argument is beside the point. Again, let me know if I'm mistaken, but I don't think I am.

Incidentally, there are other possible legal weaknesses with the movie. First, the judge excludes Hopkins' confession on the grounds that it was coerced; the officer who arrested him was Hopkins' wife's lover (he didn't realize the victim was his lover until he was at the scene with Hopkins), and attacked him at the scene, though after Hopkins had orally confessed. He was also at the police station during the interrogation of Hopkins, when Hopkins had confessed in writing. Hopkins argued that his confessions were therefore coerced.

But while this raises the possibility that the confessions were coerced, I can't see it as proof positive of coercion. Presumably the other police officers could testify that no force was used during the confession, and the original force at the arrest isn't generally seen as enough to cause all subsequent confessions to be thrown out. Even the arresting officer could testify that he got Hopkins' oral confession before he had cause to attack Hopkins. Perhaps the judge could conclude that the confessions should still be excluded, but I think she should have at least held an evidentiary hearing about this. More importantly, I can't see how Hopkins could be confident up front that the confessions would be excluded, something that he'd have to be in order to act as he did.

Second, it's not clear to me that the case should have been kept from the jury even without the murder weapon (which Hopkins cunningly arranged that the police not find) and the confession. There was a good deal of circumstantial evidence: Hopkins had a motive. He was present at the shooting, and there was reason to think he was the only person present at the shooting -- the gardeners saw him go into the house and there was no chance for anyone to get out of the house afterwards. There was no weapon, but in many crimes the weapon isn't found. I am not quite certain here, but my sense is that a reasonable jury could have found guilt beyond a reasonable doubt here.

In any event, though, the most interesting legal flaw is the collateral estoppel one -- partly because it strikes me as an open-and-shut flaw, and partly because, hey, how many movies can you think for which collateral estoppel ends up being a problem? If you think I'm wrong, please note this in the comments, but, unless you're already familiar with the criminal collateral estoppel doctrine, please don't argue against me until you read Ashe v. Swenson. Remember, I'm not making a moral argument, or a legal theory argument; I'm arguing based on a very specific and technical legal doctrine.

By the way, yes, it's only a movie. But it's only a blog post.