Double Jeapordy

The Ins and Outs of Double Jeopardy

Double jeopardy – it sounds pretty serious. And it is. The Fifth Amendment to the U.S. Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” In plain English, this means you can’t be tried twice for the same crime.
But what exactly constitutes double jeopardy? And what are the exceptions? I’ll break it down in this article so you have a clear understanding of this fundamental legal principle.

What is Double Jeopardy?

The double jeopardy clause protects against three things:

• Being prosecuted twice for the same offense after an acquittal
• Being prosecuted twice for the same offense after a conviction
• Receiving multiple punishments for the same offense

So essentially, the Fifth Amendment guarantees that the government can’t just keep coming after you for the same alleged crime if you’ve already been tried and acquitted or convicted. It prevents the prosecution from getting “two bites at the apple” to convict someone.

When Does Double Jeopardy Attach?

Double jeopardy protection kicks in as soon as the jury is sworn in at the original trial. At that point, the defendant can no longer be charged again for the same offense if there’s an acquittal or conviction (with exceptions, which I’ll explain).

However, double jeopardy does not prohibit the government from appealing a trial court ruling during the original prosecution. So if, for example, the trial judge enters a judgment of acquittal before the case goes to the jury, the prosecution can appeal that ruling to reinstate the charges, as long as it’s done during the original prosecution.

Exceptions to the Double Jeopardy Rule

Like with many legal rules, there are exceptions. Here are some key ones:

Dual Sovereignty

Under the “dual sovereignty doctrine,” double jeopardy doesn’t bar successive prosecutions if they are brought by state and federal governments for violating both state and federal laws.
For example: O.J. Simpson was acquitted in state court of murder but later convicted in federal court of armed robbery and kidnapping related to the same criminal episode. The state and federal governments were essentially prosecuting different offenses under their respective laws.

Mistrials

If the first trial ends in a mistrial, the defendant can typically be retried for the same charges. But there’s an exception to this exception: If the prosecution deliberately provoked or “goaded” the defendant into requesting a mistrial in the first case, retrial may be double jeopardy.

Appeals

It’s not double jeopardy for a higher court to reverse an acquittal on appeal and order a retrial. And if a conviction is reversed on appeal, the defendant can usually be retried as well.

Burden of Proof

The burden is on the defendant to prove there’s a double jeopardy violation once the defense is raised. So the defendant would have to show that the charges involve the same offense and the same conduct.
There are different tests courts use to determine whether two offenses are the “same offense” for double jeopardy purposes. One test looks at whether each offense requires proof of an element/fact that the other doesn’t.

Punishment

As mentioned earlier, the double jeopardy clause also prohibits multiple punishments for the same offense.
For example, if someone is convicted of both felony murder and the underlying felony (like robbery), they can only be punished for one charge. The sentences would likely run concurrently.

How Double Jeopardy Plays Out In Court

If double jeopardy is raised as a defense in court, here’s generally how it goes down:

• The defendant files a pretrial motion to dismiss the charges on double jeopardy grounds
• The judge holds a hearing where the defense must prove that double jeopardy applies
• If the judge agrees it’s double jeopardy, the case gets dismissed. If not, the prosecution continues

So in sum – the Fifth Amendment gives criminal defendants strong double jeopardy protection. But it’s not absolute immunity either.
The dual sovereignty doctrine, exceptions for mistrials/appeals, and tests for determining “same offense” all leave some wiggle room for prosecutors. Defendants have the burden to prove there’s a double jeopardy violation once it’s raised as a defense.
But overall, double jeopardy remains a fundamental safeguard against being tried twice for the same alleged crime.

Related Resources:

• What is Double Jeopardy? – Avvo
• Double Jeopardy Explained – LawInfo
• Double Jeopardy – FindLaw