What is “Double Jeopardy”?

“Double jeopardy” is a term thrown around often in the media and everyday conversation, thanks in large part to a movie from the late 1990s of the same name. The true meaning of double jeopardy is often misunderstood despite the frequency of the term in popular culture. What does double jeopardy really mean?

The right which protects an individual against double jeopardy comes straight from the U.S. Constitution. The Fifth Amendment states “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Does that simply mean that no one can be tried twice for the same crime, as most people assume? The answer is a bit complicated.

The Fifth Amendment applies to all criminal defendants, not civil litigants. To put it simply, under most circumstances individuals cannot be tried twice for the same crime after being acquitted. There are however conditions which must occur before jeopardy attaches and notable exceptions to its application in each specific situation.

The first condition is that jeopardy must “attach.” This means that certain actions cause double jeopardy protections to take effect. For the protection to attach, the prosecution must file formal charges by indictment or information. Second, the case must proceed to trial. If it is a jury trial, the judge must swear in the jury. In bench trials (trials before only a judge), it attaches when the first witness is sworn in. In each situation, this is the “point of no return.”

Following attachment of jeopardy, there are certain events which may cause the jeopardy to terminate, and which will allow an individual to be retried for the same case. These events include a mistrial (such as a hung jury) or the dismissal of a case by the judge before the jury issues its verdict.

Also, if a defendant is convicted after trial, but the case is reversed on appeal, double jeopardy does not bar a retrial of the case. If the defendant is found not guilty of the charges, then he may never be tried again by the same sovereign (the state or federal courts) for that crime. Many people are unaware that the prosecuting authority has no right to appeal an acquittal – once the jury has rendered a not guilty verdict, the matter is closed.

One notable exception to the right against double jeopardy is the “separate sovereigns” rule. It allows a person to be prosecuted twice for the same crime if the prosecution is by separate sovereigns. This occurs when an individual is prosecuted by the state (for example Florida) and the federal government, the United States of America. Although this is a rare circumstance, it does occur, usually in the context of federal civil rights violations. We have seen this take place in police related shootings which involve minority groups, where the accused police officer is acquitted in state court, and subsequently prosecuted in federal court.

In order to determine whether a subsequent case is preempted by double jeopardy, courts will look to a number of factors to determine relatedness. Such questions include whether the facts were the same in each case, the evidence presented is the same, and whether the defendant is being tried again for the same behavior and actions.

If you ever find yourself charged with a crime, it is always essential that you seek out a skilled criminal defense attorney to advocate on your behalf and defend your rights. Contact the law office of Barry M Wax today and let us help!

Written by Law Offices of Barry M. Wax

Law Offices of Barry M. Wax

For 34 years, I have provided both State- and Federal-Level representation for those facing charges ranging from wire fraud, mortgage fraud, and healthcare fraud to identity theft, drug trafficking, money laundering, murder, DUI, domestic violence and numerous other criminal charges. In every case, it is my commitment to one-on-one service and support that has separated the Law Offices of Barry M. Wax from other criminal defense firms. When it comes to your future, you need a strong defense and the ability to make the right choices and regain control of your life.