In criminal law, "double jeopardy" refers to protections that ensure the government does not prosecute someone in criminal court more than once for the same offense. Double jeopardy protects defendants from the constant threat of prosecution after a court decides a case. Double jeopardy has a long history in criminal law. It is based on the Fifth Amendment to the U.S. Constitution.
There are multiple reasons for double jeopardy's existence in criminal law. As the U.S. Supreme Court noted, the "underlying idea" of double jeopardy is as follows:
“[T]hat the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."
Additionally, the double jeopardy clause gives due deference to a jury's verdict. It also forces prosecutors to bring all relevant charges against a defendant. It, thus, requires them to review and prosecute a case competently.
This article begins by briefly describing the prohibition against double jeopardy. Then, it discusses why double jeopardy exists in criminal proceedings. Contact a criminal defense attorney if you have further questions about double jeopardy. Alternatively, consider reviewing FindLaw's section on criminal law.
Double Jeopardy and the Fifth Amendment
The Fifth Amendment to the U.S. Constitution guarantees that no criminal defendant shall "be twice put in jeopardy of life or limb" for the same criminal offense. This means the government cannot prosecute a criminal defendant again after a case concludes. A case typically ends in acquittal or conviction. It also prevents the government from imposing multiple punishments for lesser-included offenses.
The Fifth Amendment prohibition against double jeopardy only applies to federal criminal cases. The Fourteenth Amendment's due process clause applies this protection to state courts. Thus, you may assert a double jeopardy defense whether your criminal case is in state or federal court.
Double jeopardy applies to all criminal cases, including felonies and misdemeanors. The Fifth Amendment constitutional right against a second prosecution does not apply to civil cases.
However, the double jeopardy rule is not absolute. For example, the court may allow a second state or federal prosecution if the first trial results in a mistrial. The court may allow a retrial on the same facts in such instances.
Jeopardy attaches once the court swears in the jury in a jury trial. Jeopardy typically attaches in a bench trial when the court swears in the first witness.
Under federal law, every criminal defendant can appeal the district court's verdict. If the appellate court determines the trial court had insufficient evidence to convict the defendant, they may reverse the conviction. If this occurs, the conviction is treated as an acquittal. In such a situation, double jeopardy applies. This means the government cannot prosecute the defendant a second time.
Reasons for Double Jeopardy Protection
It is important to understand the rationale for the double jeopardy rule. The following section describes why this protection exists in United States jurisprudence.
Balancing Government Power
The double jeopardy clause of the Fifth Amendment is designed to protect citizens from their government. State and federal governments generally have more assets than the defendant. Double jeopardy keeps the government from using its superior resources to harass a citizen with multiple prosecutions. This is particularly true when a jury has found a defendant not guilty.
The government has the resources to prosecute a defendant again. The defendant likely does not have such a luxury. Even if the prosecution does not intentionally intend to wear down the defendant, successive prosecutions would likely have that effect.
Moreover, the government could use its first trial as another discovery period. Theoretically, this would allow the government to use the first trial as practice for its next prosecution.
The Toll of Successive Prosecutions
Double jeopardy recognizes the strain one criminal trial may cause. Double jeopardy seeks to minimize such damages. It does so by preventing further prosecutions for the same offense.
To put it mildly, facing criminal charges is stressful. Criminal defendants often face serious punishment and jail time for their alleged crimes. Defending against a criminal prosecution can be expensive, psychologically damaging, and stigmatizing. Even if a jury acquits a defendant of any wrongdoing, both the monetary and emotional toll of the case can be significant.
Furthermore, without protections against double jeopardy, the government could essentially "wear down" a defendant until they plead guilty. Again, the government has nearly unlimited resources to prosecute compared to a defendant. Double jeopardy is a criminal defendant's shield against the government's vast resources.
Validating a Judge's Decision or Jury's Verdict
Suppose a jury acquitted a criminal defendant. Suppose, further, that prosecutors could begin the same case again. This prosecution would undercut that jury's verdict entirely. The same can be said for bench trials, where a judge determines guilt.
Another issue arises if the government could bring successive prosecutions after an acquittal. Without double jeopardy, the government could simply keep prosecuting the defendant. It could do so until it could find a jury willing to convict the defendant.
Prosecutors Must Carefully Consider Their Case
Prosecutors get one bite at the apple, as they say, in criminal cases. Prosecutors decide which charges to bring against a defendant. Their charging decision can have a huge amount of influence over a criminal case.
The charges influence any plea bargains and penalties. However, limiting prosecutors to one shot at a prosecution encourages wise decision-making about the charging decisions in each case.
Protect Your Criminal Rights: Contact a Local Attorney
There are many reasons for double jeopardy protection. Although it appears straightforward, the concept of double jeopardy presents multiple issues. These include when the protection attaches, how it protects a defendant, and when it ends. An attorney can help you understand the important constitutional protections available to you. Contact a criminal defense attorney near you if you have a criminal case and would like assistance.