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Double Jeopardy

We've all heard the phrase "double jeopardy" on TV or in movies, but what does it mean, legally? In real criminal law cases, double jeopardy isn't a make-or-break moment in a game show. The rule saves more than a person's wager or place in gameshow history.

The protection against double jeopardy keeps criminal defendants from facing prosecution more than once for the same offense (with a few exceptions). Once jeopardy attaches and a criminal case begins, this protection can prevent lives from being consumed by legal proceedings. It can also save governments time and money.

Below you will find more information on the double jeopardy rule and its application in criminal law. For more specific legal advice, always contact a criminal defense attorney.

Double Jeopardy Basics

The U.S. Constitution's Fifth Amendment contains the Double Jeopardy Clause. It states no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."

Most state constitutions similarly protect individuals from retrial for the same crime. For criminal defendants, this is a crucial constitutional right. It generally applies regardless of the severity of the alleged crime.

What Are Examples of Double Jeopardy?

For example, suppose that local prosecutors charge Joshua for burglary, and the case proceeds to trial by jury. If the jury returns an acquittal, even if the prosecution disagrees with the result, the protection from double jeopardy stops them from re-trying Joshua for the same criminal offense. Someone else, like an accomplice, could still be charged and tried for the offense, however.

Are there exceptions to this rule? The short answer is yes, but only under limited conditions.

Scope of Double Jeopardy Protection

The text of the Fifth Amendment refers to being placed twice in jeopardy of "life or limb." The law is not applied so literally. The Supreme Court says the principle provides protections against the retrial for all kinds of felonies, misdemeanors and juvenile delinquency adjudications. The potential punishment does not matter.

When Does Jeopardy Attach?

There are limits to double jeopardy to keep in mind. First, if a defendant was never previously in legal "jeopardy," then subsequent prosecution is not prohibited. Generally, jeopardy attaches in a case when a jury is seated and sworn in.

If prosecutors take certain actions before jeopardy begins, or attaches, such as dismissing the indictment, the rule will not prevent them from later trying the same person for the same offense. Essentially, this allows the prosecution to direct a thorough investigation and adequately prepare for trial.

Once an individual has been placed in legal jeopardy and the jeopardy has ended, the government cannot continue to pursue a prosecution against the person for the same crime, because this would violate the rule against double jeopardy. Jeopardy will always end after a jury's verdict of acquittal.

What if the court declares a mistrial? There are multiple reasons a mistrial can be declared, such as if the jury cannot reach a unanimous verdict. In most cases, a mistrial does not stop the government from prosecuting the case again. However, if there has been prosecutorial misconduct or bad faith, double jeopardy can sometimes preclude the prosecution from bringing charges again.

What Is Considered The Same Offense?

Finally, the double jeopardy rule applies to re-prosecution of the same person for the same offense, but what constitutes the same offense? State and federal courts apply a multitude of tests to determine whether the same facts have already been litigated.

Courts determine whether the "actual evidence" has already been presented in court. Were the alleged criminal acts part of the "same transaction?" Is a court essentially accusing the defendant a second time for the "same conduct?"

The Supreme Court has ruled that double jeopardy rules apply to lesser-included and greater-included offenses (Brown v. Ohio). For example, if a man hits his wife in a jealous rage and is convicted of assault, the same court cannot later try to also convict him for the more severe charge of aggravated assault for that same incident in a subsequent trial. Also, if this man had been acquitted of an aggravated assault charge, the court could not later try him again for simple assault on the same facts.

Does Double Jeopardy Apply In Murder Cases?

What if Joshua had been charged with a more serious offense — like murder? The double jeopardy rule still applies. Prosecutors cannot simply appeal verdicts they disagree with. If a judge fails to follow the law, however, there are some limited bases for appeal by the prosecution.

What If There Is New Evidence?

New evidence cannot lead to a subsequent prosecution for the same crime. Prosecutors get their chance to build and argue the best case they can one time. Allowing further evidence to result in more trials could create a never-ending legal process for one defendant.

The same defendant might face charges for a different crime tangentially related to the initial offense. For example, if the state charged someone with assault and lost at trial, it could still separately prosecute with charges for drug offenses that occurred around the same time. The double jeopardy rule would not apply, but some state rules could limit or prevent separate trials in these circumstances, for the interests of judicial economy.

How Does Double Jeopardy Affect the States?

Even in states that do not expressly prohibit double jeopardy, the protection generally applies. In a 1969 decision, the U.S. Supreme Court held that double jeopardy applies to both state and federal prosecutions under the Fourteenth Amendment doctrine of incorporation of rights.

The largest exception to the application of the double jeopardy rule is the concept of dual sovereignty. Recognizing the separate authority of the federal and state governments, the Supreme Court has ruled that it is permissible for a person convicted or acquitted of a crime in a state court to be subsequently prosecuted and convicted federally for the same offense (Gamble v. U.S.). Likewise, if a criminal act or episode crosses state lines, both states can prosecute the crime independently without running afoul of the constitutional protections of the Double Jeopardy clause (Heath v. Alabama).

Why Is Double Jeopardy Important?

There are several reasons behind the rule against double jeopardy. The principle does the following for legal system:

  • Preserves the finality of criminal proceedings, which would be compromised if the government were allowed to ignore verdicts it did not like;
  • Imposes limits on prosecutors' power; and
  • Protects individuals from the financial and emotional toll of repeated prosecutions.

States can provide greater protection against multiple prosecutions than the U.S. Constitution does, but not less.

Learn More About Double Jeopardy by Talking to an Attorney

The right not to be re-prosecuted for the same crime is a fundamental constitutional protection. It can keep you or a loved one free, free from jail or prison — and free from unending legal processes.

However, this is a complex area of criminal law. If you fear for your rights and freedom, get help from an experienced criminal defense attorney. They will understand the local nuances of the law and whether a double jeopardy defense applies to your case.

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