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What Is Double Jeopardy?

Double jeopardy keeps you from going to trial for the same criminal offense more than once. Basically, you can claim the double jeopardy defense if:

  • Prosecutors attempt to put you on trial again for the same offense after being convicted or acquitted
  • You face more than one punishment for the same offense

Basics of Double Jeopardy

Protection from double jeopardy is in the Constitution, which states that no one shall "be subject for the same offense to be twice put in jeopardy of life or limb."

While the Fifth Amendment's ban on double jeopardy only applies to federal charges, the Supreme Court extended it to apply to state criminal charges as well, finding that double jeopardy is a "fundamental ideal in our constitutional heritage."

The Double Jeopardy Rule

If you were already found not guilty of a crime, the double jeopardy rule allows you to rebuild your life knowing that the government will not prosecute you again for the same crime.

There are many reasons why the rule against double jeopardy exists, including that it:

  • Protects you from the emotional and financial toll of repeated trials
  • Allows you to begin to pick up the pieces of your life that were put on hold
  • Preserves the finality of criminal proceedings
  • Limits powers of the prosecutor

Generally, double jeopardy furthers two important objectives. For the prosecution, the prohibition against trying a defendant twice for the same crime means that it must put its best evidence forward and be as thorough as possible to get a conviction. For the defendant, it means that there is certainty in acquittal.

Exceptions to the Double Jeopardy Rule

There are times when you can stand trial again based upon the same set of facts without the government violating your Fifth Amendment rights.

Trial By Different Governments

Different governments may try the same defendant for the same crime on the same facts. For example, you can go to trial in both federal and state courts for the same or similar crimes arising from the same events.

If the Jeopardy Didn't 'Attach'

You must first be placed "in jeopardy" for the Fifth Amendment to apply. In general, jeopardy will "attach" when a jury is sworn in. When a jury is not involved, it attaches when the first witness takes an oath and testifies.

So, if the prosecution drops the charges or dismisses the case, they can later refile the same charges. This is because simply filing charges doesn't cause jeopardy to attach.

Civil Cases

Further, double jeopardy only applies to criminal charges, not civil charges. For example, you can be acquitted of felony murder charges and still have to stand trial for a wrongful death lawsuit on the same set of facts.

Other Exceptions

There are also other limited exceptions when you could face another trial. The Supreme Court has held that if a jury finds you guilty and the judge overrules that conviction, then the prosecution may appeal the judge's action. However, if the judge finds you not guilty prior to the jury's determination, then prosecutors cannot retry you.

The government may also decide to you if you are found guilty by a jury or trial judge and an appeals court overturns that conviction.