When Do Double Jeopardy Protections Attach?

On its face, the double jeopardy rule seems straightforward. But, the U.S. Supreme Court has often been asked to clarify its meaning and application. One question the Court has addressed is when the protection attaches to a criminal defendant. The protection does not attach itself to a case immediately. Nor does it necessarily end upon conviction.

In legal terms, "jeopardy" refers to the risk of being found guilty and sentenced in a criminal trial. This article summarizes when jeopardy attaches and what that means regarding double jeopardy protections.

Navigating the complexities of double jeopardy can be overwhelming. If you've been charged with a crime, it's crucial to understand your rights and protections. Contact a criminal defense attorney near you to learn how double jeopardy protections may impact your case and your defense.

When Does Jeopardy Attach?

Once law enforcement charges a criminal defendant with a crime, jeopardy attaches at one of the following stages:

• When the jury is sworn in at a criminal jury trial
• When the first witness is sworn in a bench trial
• When the court first hears evidence in a juvenile proceeding
• When the court accepts a plea agreement between a defendant and a prosecutor

Jeopardy does not attach immediately after law enforcement arrests a suspect. It also does not attach when the prosecutor informs a suspect of their criminal charges. Criminal defendants must understand when jeopardy attaches to know when double jeopardy protections apply to their case.

After jeopardy attaches to a criminal defendant's case, the state generally cannot prosecute the defendant again for the same offense. But some exceptions apply. These exceptions are detailed below.

Double Jeopardy Exception: Successful Appeals

A criminal defendant's successful appeal may require a new criminal proceeding. If an appellate court reverses the first trial's result, the prosecution may retry the defendant. Jeopardy attaches in the retrial in the same manner as the first trial (i.e., when the jury is sworn in or the court swears in the first witness).

As the Supreme Court found in U.S. v. Perez (1824), retrials are allowed because double jeopardy applies only to final judgments. Judgments based on reversible errors are not final judgments protected by the Fifth Amendment. Examples of these reversible errors include:

• Instructing the jury on law inapplicable to the case
• Applying the wrong legal standard (such as standard of proof)
• Permitting improper attorney argument
• Improperly admitting or excluding evidence (such as evidence without foundation or hearsay)
• Juror misconduct at material stages of the trial
• Judge's abuse of discretion “outside the bounds of reasonableness"
• The law applied in the case later being ruled unconstitutional
• Recently discovered evidence that would have probably changed the verdict
• Ineffective assistance of counsel (not having adequate legal representation)

The prime exception to this rule is a reversal for insufficient evidence, which permanently frees the defendant.

Double Jeopardy Exception: Mistrials

In some circumstances, courts will declare a mistrial. A mistrial may occur when the criminal trial's jury cannot agree to a verdict (otherwise known as a hung jury). Deadlocked jurors whose opinions are split can lead to retrials if “manifest necessity" demands a retrial. Other times, the court may declare a mistrial if a party engages in serious misconduct.

Mistrials don't necessarily invoke double jeopardy protections. They only invoke the protections if the trial judge weighs the reasoning for the mistrial and rightly dismisses the case.

The double jeopardy rule protects against mistrials caused by prosecutorial conduct. The criminal charges remain dismissed throughout all jurisdictions.

Double jeopardy does not attach when the defendant intentionally causes a mistrial. The court will allow the prosecution to commence a new trial in such a situation.

When Jeopardy Ends in Favor of the Defendant

Suppose jeopardy attaches to a case, and the jury acquits the defendant. In that situation, the government cannot detain them for additional court proceedings on the same issue. Jeopardy “ends" at the following exonerating stages:

• After a jury's verdict of acquittal
• After a trial court judge dismisses a case unless the judge abused their discretion
• After a successful post-conviction appeal in which the sufficiency of the evidence was challenged
• After a mistrial (and only if the judge dismisses the case)

As noted above, successful appeals and mistrials do not necessarily end double jeopardy protection.

Charged With a Crime? Get Legal Help Understanding Double Jeopardy

Double jeopardy is a complex area of criminal law. If you are facing a criminal charge, an attorney can determine if double jeopardy protections apply to your situation and help develop a strong defense. An experienced criminal defense attorney can also advise on:

• The attachment of jeopardy in your case and how it affects available legal protections
• Defense strategies for the criminal offenses you’re charged with, either misdemeanors or felonies
• Whether entering a guilty plea or negotiating a plea bargain may be the best idea
• How state and federal law apply to your case

Contact a criminal defense lawyer near you today to get started.