“Double jeopardy” is one of those legal phrases we have all heard on a regular basis (thank you very much, Alex Trebek), but can be hard for the layperson to understand or describe. Double jeopardy is actually a criminal law protection that comes to us from the Fifth Amendment included in the original Bill of Rights (which also includes the right against self-incrimination as well the guarantee of due process from the federal government). Below we explore how the double jeopardy clause protects defendants and when it can and cannot be used.

You Cannot Be Put on Trial for the Same Crime Twice

The word “double” does not actually appear in the Fifth Amendment double jeopardy clause which actually reads: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…

What this basically means is that the government cannot put you on trial for the same crime twice. If you are found not guilty of a crime, then the government cannot attempt to prosecute you a second time for that crime, and they may not appeal that verdict to an appeals court.

You also cannot be put on trial a second time for what are called “lesser-included offenses,” which are crimes which include proving the elements of the first crime.  Thus, if you were found not guilty of burglarizing a house to commit larceny therein, you cannot later be brought to trial for the lesser crime of larceny.

That said, different criminal systems can put you on trial separately for the same conduct, meaning you can be brought to trial by both a federal court and a state court for the same conduct, or by two state courts.

When Jeopardy “Attaches”

A key factor in determining whether prosecutors are prevented from bringing charges against based on double jeopardy is whether jeopardy “attaches” to an initial proceeding. For example, if you are investigated by a grand jury that decides not to bring charges, jeopardy does not attach and a second grand jury can later bring charges. But if you are in a jury trial, and a jury has been empaneled against you, then jeopardy will attach, and the prosecutor cannot then dismiss the charges and bring a second set of charges against you based on the same conduct.

When Double Jeopardy Doesn’t Apply

There are a number of situations, however, in which double jeopardy does not apply to the prosecution bringing charges against a defendant for a second time or appealing the case, and these situations include:

  • Appealing a Sentence: Again, prosecutors cannot appeal a not guilty verdict, but they can appeal in a case in which the defendant was found guilty if they are seeking a stricter punishment (defendants can also appeal for a lighter sentence).
  • Hung Jury: If the jury cannot reach a guilty or not guilty verdict, then there will be a hung jury. Generally, the prosecutor has the right to pursue a second trial without violating the double jeopardy clause, although the prosecutor may decline to do so.
  • Other Mistrials: A mistrial may occur for other reasons other than a hung jury, such as improper jury behavior or other actions requiring a new trial. If the defendant requests and/or does not object to a mistrial, double jeopardy will not apply.
  • After a Defendant Successfully Appeals: If a defendant appeals a guilty verdict, and the appellate court reverses the guilty verdict based on some error made by the trial court, in many cases, prosecutors have the right to pursue a second trial.

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The Law Office of Corey Evan Parker is focused on the civil and criminal appeals process in Washington and California. If you are considering filing a criminal or civil appeal, feel free to contact Mr. Parker today for a no obligation 30-minute consultation.

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