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What Is Double Jeopardy?

Key Takeaways:

  • Double jeopardy is a protection under the Fifth Amendment to the Constitution.
  • Jeopardy attaches in a jury trial when the jury is empaneled and sworn. 
  • You can be charged for the same offense by dual sovereigns under state law and under federal law.

Double jeopardy protects you from being charged more than once for the same crime. If you are charged with a crime and a jury trial finds you not guilty, you can’t face a second prosecution for the same offense. Double jeopardy protection is a constitutional right.

To find out more about your rights in the American criminal justice system, talk to an experienced criminal defense lawyer.

Basics of Double Jeopardy

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

  • Prosecutors try to charge you with the same offense after a conviction or acquittal in the first trial
  • You face more than one punishment for the same offense

Protection from double jeopardy is in the Fifth Amendment to the United States Constitution. Under the Bill of Rights, 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 law, the U.S. Supreme Court extended it to apply to state criminal charges. In the case Benton v. Maryland, the Supreme Court found double jeopardy is a “fundamental ideal in our constitutional heritage.”

What Is 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.

The double jeopardy rule offers several protections, including:

  • Protecting you from the emotional and financial toll of retrials
  • Allowing you to move on with your life
  • Preserving the finality of criminal proceedings
  • Limiting the powers of the prosecutor

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.

Are There 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. Exceptions to double jeopardy in criminal law include the following:

Trial by Different Governments

Different governments may try the same defendant for the same crime on the same facts. This is because of dual sovereignty. For example, you can go to trial in both federal and state courts for the same or similar crimes arising from the same events. State governments and the federal government are separate sovereigns.

If the Jeopardy Didn’t ‘Attach’

You must first be “in jeopardy” for the Fifth Amendment to apply. In Crist v. Bretz, the Supreme Court also found that jeopardy attaches in a jury trial when the jury is empaneled and sworn.

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 before a jury is sworn, they can later refile the same charges. This is because simply filing charges doesn’t cause jeopardy to attach.

Civil Cases and Criminal Charges

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. The burden of proof is also lower in civil cases than in criminal cases.

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 before the jury’s decision, then prosecutors cannot retry you.

The government may also decide to charge you in a second trial if a trial judge or jury finds you guilty and an appeals court overturns that conviction.

How Can a Criminal Defense Lawyer Help?

If you are charged a second time for a crime, you may have a double jeopardy defense. Your attorney can review your criminal case and identify all your defense options. If double jeopardy applies, it could be a violation of your right to due process under the U.S. Constitution. Your attorney can assert your constitutional rights to double jeopardy protection.

If you were convicted in violation of the double jeopardy clause, your attorney can file an appeal with the court of appeals. If you have questions about what is double jeopardy, talk to a criminal defense lawyer for answers.

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