When Double Jeopardy Protections Take Hold

When Does Double Jeopardy “Attach?”

Double Jeopardy protections in the U.S. Constitution keep criminal defendants from being prosecuted twice for the same offense. But the protection does not “attach” itself to a case immediately when a defendant is charged, nor does it necessarily end upon conviction. For an explanation of when double jeopardy rights take hold or "attach," read on.

Definition of Double Jeopardy

The Fifth Amendment to the U. S. Constitution states: "No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." As you can imagine, this guarantee in the Bill of Rights is important because it prevents different prosecutors from using the same conduct or incident to continually prosecute you until they come up with a conviction.

When Double Jeopardy Begins

Once someone is charged with a crime, jeopardy attaches at the following stages:

  • when the jury is sworn;
  • when the first witness is sworn (for cases tried by a judge without a jury);
  • when the court first hears evidence in a juvenile proceeding;
  • when the court accepts a plea agreement between a defendant and a prosecutor.

When Jeopardy Ends in Favor of the Defendant

Once jeopardy has attached and the defendant is found innocent, the government cannot detain them for additional court proceedings on the same issue. Jeopardy therefore “ends” at the following exonerating stages:

  • After a jury’s verdict of acquittal;
  • After a trial court judge grants a dismissal, unless the judge abused their discretion;
  • After a trial court grants a mistrial; and
  • After a successful post-conviction appeal.

Successful appeals and mistrials, while both “exonerating proceedings,” deserve further attention, as they present a wide range of results.

Successful Appeals

Ironically, a successful appeal may necessitate a new trial, again placing a convicted offender in jeopardy. If a case is reversed on appeal, jeopardy will not attach until the court reaches a final judgment upon retrial. The prime exception to this rule is reversal for insufficient evidence, which permanently frees the defendant.

As the Supreme Court found in U.S. v. Perez, retrials are allowed because double jeopardy applies only to final judgments. Judgments based on reversible errors are not final judgments protected by the Fifth Amendment. Examples of these reversible errors are

  • Instructing the jury on law inapplicable to the case;
  • Applying the wrong legal standard;
  • Permitting seriously improper attorney argument;
  • Improperly admitting or excluding evidence, such as evidence without foundation;
  • Juror misconduct at material stages of the trial;
  • Judge’s abuse of discretion “outside the bounds of reasonableness”;
  • The law applied was later found to be unconstitutional;
  • Recently discovered evidence that would have probably changed the verdict; and
  • Ineffective assistance of counsel.

Mistrials and Double Jeopardy

Mistrials don’t necessarily invoke double jeopardy protections unless the trial judge weighs the reasoning for the mistrial and rightly dismisses the case. Deadlocked jurors who are honestly split in their opinions can lead to retrials if “manifest necessity” demands a retrial.

Mistrials caused by prosecutorial conduct are obviously protected by the double jeopardy rule, and the charges remain dismissed through all jurisdictions. Conversely, a mistrial intentionally caused by a defendant vitiates their double jeopardy right, and they can be subject to a new trial.

Get A Free Attorney Case Review

Double jeopardy protection is a complex area of criminal law. If you’re being investigated for a crime that was similar to one for which you've already served jail time, the issue can be critically important for you. If you want to know if you’re being unfairly prosecuted for the same conduct, you can meet with a criminal attorney to discuss your case. A skilled attorney in your jurisdiction will initially review your case free of charge and under no obligation to you.

Next Steps

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