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Double Jeopardy

Fifth Amendment Protections Against Double Jeopardy

The Fifth Amendment of the United States Constitution guarantees individuals, among other rights, protection against double jeopardy. This principle ensures that a person cannot be tried twice for the same offense

However, it's essential to understand the complexities and nuances of this protection. Various exceptions have been carved out over the years through case law, and there are scenarios where federal prosecutors might navigate these rules to their advantage. 

Fifth Amendment Protections Against Double Jeopardy
Double jeopardy protections mean you cannot be tried twice for the same offense.

The Fifth Amendment's double jeopardy clause reflects the pattern of resistance to the arbitrary exercise of power that underlies other provisions of the Constitution. However, judicial decisions regarding the waiver of double jeopardy have been made.

The clause says that no person can be convicted twice of the same offense. The clause's effectiveness depends on whether two separate offenses are identical. 

In addition, the defendant's relinquishment of a double jeopardy claim can be an issue. In the 1989 decision in United States v. Broce, the Supreme Court held unanimously that the defendant could not assert a double jeopardy claim because he had waived it in the plea bargain agreement

Simply put, the double jeopardy clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. It creates several rights relevant to criminal proceedings.

It guarantees the right to a grand jury, forbids “double jeopardy,” and protects against self-incrimination.  An experienced federal criminal defense attorney who understands the ins and outs of double jeopardy can provide you with the best option for ensuring these rights are protected.

What is the Principle of Double Jeopardy?

The double jeopardy clause in the Fifth Amendment states, "No person shall be subject for the same offense to be twice put in jeopardy of life or limb." 

The constitutional prohibition against double jeopardy was designed to protect someone from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.

Double Jeopardy

The underlying principle is that the State, with all its resources and power, should not be allowed to attempt to convict an individual of an alleged offense repeatedly.

This would subject them to embarrassment, expense, and ordeal and force them to continue feeling anxious and insecure. It would also enhance the possibility that even though innocent, they may be found guilty.

This means that once you have been tried and a verdict has been reached—guilty, not guilty, or another conclusion—you cannot be tried again for the same crime based on the same facts.

Jeopardy attaches in a jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence, or when a court accepts a defendant's plea.

What is the Scope of Protection?

Double jeopardy protection covers several phases of the legal process:

  • Trial: Once a jury has been empaneled and sworn in, or a judge begins hearing evidence in a bench trial, the jeopardy "attaches," and you are officially "in jeopardy." Once the trial concludes with a verdict, your "jeopardy" ends, and you cannot be tried again.
  • Retrial: A retrial is typically permissible if a trial ends without a verdict (e.g., a hung jury). However, you cannot be retried for the same offense once you are acquitted, even with new evidence.
  • Multiple Punishments: Double jeopardy also prevents the imposition of multiple punishments for the same offense in the same jurisdiction.

When Does Double Jeopardy Not Apply?

The protection against double jeopardy is not absolute. A few exceptions and scenarios exist in which the double jeopardy guarantee does not apply. These include:

  • Separate Sovereigns Doctrine: This principle allows different jurisdictions (e.g., state and federal) to prosecute the same person for the same actions without violating double jeopardy protections. For instance, if you are acquitted of a crime in state court, federal prosecutors might still pursue charges under federal law.
  • Different Charges for the Same Act (Dual Criminality): Similar to separate sovereigns, dual criminality involves different charges for the same act but under other legal provisions. For example, assaulting a federal officer and a state assault charge could both be pursued if the acts occurred simultaneously but are considered separate under different bodies of law.
  • Pre-Trial Investigations and Processes: Under the law, jeopardy begins only when the trial starts. If prosecutors bring charges and the charges are dismissed, nothing prevents prosecutors from continuing their investigations and bringing new charges based on new evidence. However, the statute of limitations may limit the time prosecutors charge you.
  • Mistrials and Appeals: If a mistrial is declared due to circumstances like a hung jury, the double jeopardy clause does not prohibit a retrial. Furthermore, if you appeal a conviction and win, the prosecution can typically retry you, as the court usually simply reverses the decision for a retrial. However, if the appeals court acquits you when they overturn the conviction, double jeopardy protections would apply in that case.
  • Civil Cases: Double jeopardy only applies to criminal charges, not civil cases. Individual citizens can theoretically sue you in civil court as much as they like—although a judge will likely dismiss repeated or frivolous suits and possibly penalize plaintiffs for bringing them, as they may consider this behavior an abuse of the court system.

What Defense Strategies Can Uphold Double Jeopardy Rights?

A skilled criminal defense attorney is pivotal in safeguarding your rights against double jeopardy violations. Below are some strategic measures your attorney might employ:

  • Motion to Dismiss: If you face new charges that could be seen as violating double jeopardy protections, your attorney can file a motion to dismiss. This legal maneuver seeks to invalidate the charges based on your constitutional rights.
  • Challenging Separate Sovereignty: While challenging the Separate Sovereignty Doctrine is complex, specific scenarios—such as the significant involvement of federal authorities in a state prosecution—might provide grounds to argue against successive federal charges on double jeopardy principles.
  • Negotiating Plea Agreements: If your case is best resolved with a plea agreement, your attorney may negotiate to include language that prevents future prosecution for the same conduct. These agreements require careful drafting to ensure comprehensive protection.

Contact us for more information. Eisner Gorin LLP has offices in Los Angeles, California.

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