5 Things To Know About Double Jeopardy

13 October 2015
 Categories: , Blog


The prohibition against putting a criminal defendant in double jeopardy is an important protection for U.S. citizens. However, there are five things you should know about this restriction.

1. Jeopardy begins when the petit (trial) jury is sworn in.

In legal parlance, jeopardy means that you have been indicted (formally charged) and are on trial for a criminal offense, and if convicted, you could face penalties, prison time, or other punishments. It is a reference to the dangers of being convicted to your life and liberty. Jeopardy begins at the point when the petit (trial jury, not the grand jury), jury has been sworn in.

The fifth amendment of the constitution says that no person should be "subject for the same offence to be twice put in jeopardy of life or limb."

2. If you were convicted of a murder that you didn't commit, you wouldn't be able to use double jeopardy to get away with murder later.

The 1999 movie Double Jeopardy is based on false premises. In the fictional story, a woman's husband sets her up to be charged and convicted of his "murder," so that he could benefit from his life insurance policy and gain custody of his son through his girlfriend (who the protagonist thought was her friend). While the woman was in prison, an inmate (who used to be a lawyer) tells her she can find the husband and shoot him in plain sight of everyone in a public place and not face punishment for it due to the double jeopardy provision.

The truth is double jeopardy can only protect you from being tried for the same crime that was committed at a specific time and place: in other words, it would only apply to one specific incident. Even if you served time for a crime you didn't commit, this would not protect you from having consequences for a crime you could commit in the future. You couldn't even expect credit for time served.

3. Receiving federal and state charges for the same crime is not considered double jeopardy.

Federal and state courts are two separate entities with different jurisdictions. You can receive charges and go to trial twice for the same incident of crime if you broke both federal and state laws when engaged in the crime. This is not considered double jeopardy. For instance, Michael Vick was convicted of animal cruelty charges in both state and federal courts because he was involved in facilitating interstate dog-fighting rings.

4. Going to trial for a second time after a successful appeal or a mistrial is also not considered double jeopardy.

If you are convicted of a crime but appeal it successfully, or the judge declares that a mistrial, the prosecutor can ask for a new trial. This is because the jury or judge did not declare you innocent or acquit you. In this case, either you didn't get a fair first trial possibly due to of a number of factors, or something happened that tainted the original trial.

5. Each state has their own parameters of how the double jeopardy clause can be used.

Some states have a much narrower viewpoint on this protection. Some states' laws dictate that double jeopardy refers to the incident itself, and others say that if the "material facts" of the case change, then a person could be tried a second time. For example, in the latter states, if recently found evidence suggests that the crime was actually a first-degree murder, a person could be charged again even if they already had went to trial for the same incident, but at that time the charge was accidental manslaughter.

For more information, contact Novak Lee Atty At Law or a similar legal professional.