The Washington Association of Sheriffs & Police Chiefs (WASPC) reports that nearly 500,000 arrests were made in the state in 2021 alone. For an accused person who takes a criminal case to trial, an acquittal can come with a tremendous sense of relief. You may be wondering, Can the prosecution appeal an acquittal? With a very limited exception, the answer is “no.”  Double Jeopardy protects defendants against appeals by prosecutors. Within this article, our Washington criminal appellate lawyers explain the most important things to know about a prosecutor’s right to challenge an acquittal and Double Jeopardy protections in Washington. 

General Rule: Prosecutor Cannot Appeal an Acquittal in Washington

As a starting point, it is important to know that a prosecutor cannot appeal an acquittal in Washington State. The reason is that there is clear constitutional protection for defendants. The   Fifth Amendment of the United States Constitution states that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This is referred to simply as the Double Jeopardy protection. It prevents the prosecution from appealing an acquittal. 

Exception: There is one clear Double Jeopardy exception in the United States. If a person is found guilty of bribing a judge in their criminal trial, they could be prosecuted for the same offense again on the grounds that they were never truly in “jeopardy” the first time. 

Three Circumstances When Double Jeopardy Protections Do Not Apply

It is crucial to know what Double Jeopardy protections apply and when they do not apply. They protect a defendant from facing “jeopardy” for the same charge twice. However, they do not apply to every situation. Here are three circumstances during which Double Jeopardy does not apply: 

  • Federal Charge and State Charge: There are certain situations in which a person could potentially face both federal criminal liability and state criminal liability for the same underlying offense. Double Jeopardy does not apply in this scenario. In other words, an acquittal in a state criminal court does not prevent federal criminal charges from being filed. 
  • A Mistrial: A mistrial is a trial deemed invalid due to some type of error in the underlying proceedings. If there is a mistrial in a criminal case, the defendant could be prosecuted again. That being said, it is not unheard of for prosecutors to drop charges after a mistrial. Whether they opt to do so depends on many case-specific factors. 
  • Hung Jury (Not Acquitted): A hung jury is one that cannot reach a verdict. It is neither a conviction nor an acquittal. In Washington, a hung jury could result in a new trial, as no result has been reached. Similar to mistrials, the prosecution may or may not opt to bring the criminal case again after a hung jury result. 

To be clear, none of these three scenarios involve “appeals” by prosecutors. Instead, they are scenarios in which a defendant could face a further risk of criminal liability because of unique circumstances pertaining to the allegations or the legal process (trial). 

Defendants Have the Right to Appeal a Conviction in Washington 

Prosecutors cannot appeal an acquittal in Washington State. A person who has been acquitted in a state or federal criminal trial will not have to defend themselves again in the appeals process. That being said, defendants who have been convicted of a criminal offense in Washington have an unambiguous right to file an appeal. 

The right to appeal is especially important in serious felony cases—where the defendant has an enormous amount at stake. There is limited time to initiate the appeals process. The Washington State Courts explain that a Notice of Appeal—the legal document that preserves one’s right to appeal a criminal conviction—should be filed within 30 days. 

Contact Our Washington Criminal Appellate Law Attorney for Guidance and Support

At The Appellate Law Firm, our Washington criminal appeals attorneys are skilled, devoted advocates for justice. If you have any questions or concerns about prosecutor appeal rights, we can help. Contact us today for a completely confidential consultation. From our Seattle office, our firm handles criminal appeals all over Washington, including in King County, Pierce County, Clark County, and Kitsap County. 

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