What Is Double Jeopardy?

Double Jeopardy

Outside of the entertainment world, is there really such a thing as double jeopardy?

The answer is yes; there really is. However, despite what you may have deduced from the popular television game show, double jeopardy in the legal sense has nothing to do with the second round in a trivia competition. For someone who has already been tried for having committed a criminal offense, the true meaning of the term is far more important.

As defined in the Fifth Amendment, double jeopardy is the concept that prevents the law from trying an individual a second time on the original or similar charges. The doctrine applies in certain types of case regardless of whether the person in question has been acquitted at trial or found guilty and suffered a penalty.

Why Is Double Jeopardy Important?

In localities where double jeopardy does not exist, there is nothing to stop the government from prosecuting a possibly innocent individual repeatedly until it wins a conviction. Endless prosecutorial bouts will wear down any defendant both emotionally and financially, to say nothing of what they will do to his or her reputation.

For anyone faced with criminal prosecution, this assurance will serve as an incomparable protection. Without it, the government could well continue with numerous attempts to overturn any trial verdict with which it was not happy. In this way, double jeopardy serves as a vital means of ensuring the integrity of the judicial process.

Every state in the union must offer its citizens double jeopardy protection at least up to the level specified in the U.S. Constitution. Some may provide defendants with this safeguard at a higher level, but no state in the union can drop its double jeopardy protections below the constitutional standard.

What Types of Crimes are Eligible for Double Jeopardy Protection?

Although many people wish it were otherwise, not every variety of criminal case will qualify for the cover of the double jeopardy clause. The concept will only apply to proceedings that by their very nature put the defendant in jeopardy. The wording of the Fifth Amendment specifically mentions threats to life or limb. This would indicate that only cases such as murder in the first degree for which the defendant could, if found guilty, face corporeal punishment or the death penalty.

However, the Supreme Court has since established that regardless of the potential punishment involved, double jeopardy protections should extend to all:

  • Felonies.
  • Misdemeanors.
  • Cases involving juvenile offenders.

When Does Double Jeopardy Attach?

Our clients frequently ask us when double jeopardy will begin to apply in their case. The question is a vital one. Anything that law enforcement or the government does before double jeopardy has attached will not be subject to its protections. For example, if the government dismisses an indictment before the double jeopardy attachment, the person will remain in danger of facing prosecution for that same crime on a later date. Only after double jeopardy has attached can the defendant be certain of protection against repeated prosecutions and punishments for the identical offense.

In a trial by jury, double jeopardy will attach as soon as the jury is sworn. In a criminal case tried only by a judge with no jury present, jeopardy will attach upon the swearing-in of the first witness. Finally, if the defendant should decide to enter into a plea agreement, double jeopardy will attach at the time of that agreement’s acceptance by the court.

When Does Double Jeopardy End?

Once the defendant is out of double jeopardy, the court can no longer detain him or subject him to additional proceedings concerning the same offense. Double jeopardy will end in one of four ways and will happen either:

  • After the jury has acquitted the defendant.
  • After the trial court has dismissed the case.
  • After the court has declared a mistrial.
  • After a conviction on appeal.

There are also situations in which jeopardy protections that originally existed can cease to apply. This will often happen when the original offense concerning a lesser charge later leads to serious but unforeseen circumstances. For example, if a battery charge should later result in the victim’s death, double jeopardy will not protect the defendant from facing prosecution for murder.

In addition, if the judge has dismissed a case for any reason other than prosecutorial misconduct, the defendant can still face prosecution for that original offense.

Finally, double jeopardy may not always prevent a defendant acquitted in one state from facing prosecution for the same offense in another state or in federal court.

The laws surrounding double jeopardy can be confusing. Please contact the law offices of Gregory & Waldo for additional information.