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double jeopardy law

Understanding Double Jeopardy Law: Protecting Against Multiple Prosecutions

The Fifth Amendment of 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.” This clause, known as the Double Jeopardy Clause, prohibits both successive prosecutions and multiple punishments for the same criminal offense. But what exactly constitutes “the same offense,” and what protections does this afford criminal defendants? Let’s break it down.

What is Double Jeopardy?

The Double Jeopardy Clause serves two primary purposes:

1. It protects individuals from the embarrassment, expense, and anxiety of repeated attempts by the government to convict them of an alleged offense.
2. It preserves the finality of jury verdicts of acquittal, upholding the presumption of innocence.

Essentially, it means that once a person has been acquitted or convicted of a particular crime, they cannot be charged again for that same crime. This prevents prosecutors from trying multiple times to convict someone by bringing the same charges again and again.For example, if John is charged with armed robbery but found not guilty at trial, double jeopardy prevents prosecutors from charging him again for that same robbery. The clause bars successive prosecutions following an acquittal or a conviction.

When Does Double Jeopardy Attach?

In a jury trial, jeopardy attaches when the jury is empaneled and sworn in. In a bench trial tried by a judge without a jury, jeopardy attaches when the first witness is sworn and begins testimony.So once a trial has begun, and jeopardy has attached, the defendant cannot be retried for that offense except in special circumstances (see below).

What Constitutes the “Same Offense”?

Courts use the Blockburger test to determine whether two offenses constitute the “same offense” for double jeopardy purposes. Under this test, offenses are considered separate and can lead to multiple prosecutions if each offense contains an element that the other does not.For example:

• Robbery requires taking property by force.
• Burglary requires unlawful entry into a building.

So a defendant could be tried for both robbery and burglary of the same residence without violating double jeopardy, because the offenses each contain different elements.However, lesser included offenses are considered the “same offense.” So someone could not be tried for both murder and involuntary manslaughter of the same victim, because manslaughter is a lesser included offense of murder (all the elements of manslaughter are contained within murder).

Exceptions – When Can Someone Be Tried Twice?

There are a few exceptions where a defendant can be tried more than once for the same crime:Mistrial – If the first trial ends prematurely because of a hung jury or procedural error, the case can typically be retried. However, if the mistrial was caused intentionally by prosecutorial misconduct, retrial may be barred.Appeal and Retrial – If a defendant appeals their conviction and gets it overturned, they can usually be retried. But if the reversal was based on insufficient evidence to prove guilt, retrial is prohibited.“Dual Sovereignty” Doctrine – This allows a defendant to be tried in both federal and state court for the same conduct if it violates both federal and state laws. For example, someone who robs a bank can be charged with federal bank robbery laws as well as state robbery laws.Civil Action After Criminal Prosecution – The government can pursue civil remedies, such as fines or forfeiture, against a defendant even after they have been convicted or acquitted on criminal charges stemming from the same misconduct. However, civil sanctions cannot be so extreme that they essentially constitute a second criminal punishment.

How Double Jeopardy Law Protects Defendants

The Double Jeopardy Clause affords substantial protections by barring repeated attempts to convict defendants in most situations. It prevents prosecutors from learning from the shortcomings of their first try and improving their case for a second bite at the apple.Without double jeopardy law, the government could keep prosecuting someone indefinitely until finally securing a conviction – wearing down defendants emotionally and financially in the process.By precluding this, the Double Jeopardy Clause upholds the finality and integrity of acquittals. Once a verdict of not guilty comes in, the defendant is shielded from having to run the gauntlet again. Their innocence is presumed absolute, regardless of whether the acquittal resulted from evidentiary weaknesses or jury nullification.For those who are convicted, double jeopardy law still provides meaningful protection. It means defendants can move forward from their convictions without lingering uncertainty over whether the ordeal could start anew.However, because jeopardy must attach before double jeopardy limits kick in, defendants are afforded less protection pre-trial. Up until the first witness testifies, charges can typically be dropped and refiled repeatedly.

When Can Double Jeopardy Be Waived?

In certain circumstances, a defendant can waive their right to claim double jeopardy protection:

• As a term of a plea agreement – Defendants may plead guilty in exchange for prosecutors dropping other charges, preventing separate prosecutions that would otherwise violate double jeopardy.
• By requesting a mistrial – If the defense moves for or consents to a mistrial, retrial is often permitted even though jeopardy has attached.
• Failing to raise it as a defense before the second trial begins.

However, courts scrutinize purported waivers of fundamental constitutional rights closely. Any waiver agreement must be entered into knowingly, intelligently, and voluntarily.

Remaining Unsettled Issues

Despite having roots extending back centuries in English common law, certain aspects of double jeopardy law remain unresolved. Issues continue to arise concerning the breadth of the “same offense” test, application of the dual sovereignty doctrine, and the scope of permitted civil sanctions following criminal conviction.The dual sovereignty exception, in particular, has come under fire as difficult to justify from the defendant’s perspective. Getting prosecuted twice for the same misconduct seems contrary to the purpose of double jeopardy protection, regardless of which sovereign brings the charges.

Conclusion: Balance of Power

At its core, the Double Jeopardy Clause helps balance power between the mighty state and humble individual. It interposes judicious limits on prosecutorial overreach that would otherwise subject defendants to relentless persecution through repeated prosecutions.However, as with any power, that of double jeopardy protection is susceptible to abuse as well. Invoking it strategically at times enables defendants to unjustly evade accountability through legal technicalities. Where to optimally balance these competing concerns remains an evolving determination.So while double jeopardy law leaves some gray areas, its essential guarantee provides a critical shield. Knowing the government only gets one full and fair shot at convicting you greatly relieves the pressure and apprehension. With personal freedom hanging in the balance, that added margin of security carries profound value.