When Double Jeopardy Protection Applies

Double jeopardy is one of the most important constitutional rights criminal defendants possess. On its face, the rule seems straightforward. However, the U.S. Supreme Court has had to interpret its meaning many times throughout history. One such question is when double jeopardy applies or attaches.

This article first summarizes the double jeopardy protection. Then, it details when double jeopardy applies in a criminal case.

The Double Jeopardy Rule

The double jeopardy clause is located in the Fifth Amendment to the U.S. Constitution. It protects criminal defendants from successive prosecutions for a single offense. Double jeopardy only extends to proceedings that put a criminal defendant in jeopardy of life or limb twice.

But when, exactly, is a defendant in jeopardy of life or limb? The clause is not interpreted literally. Rather, double jeopardy protection extends to the following:

• Felonies
• Misdemeanors
• Juvenile delinquency adjudications

The double jeopardy protection applies in both state and federal courts. It only applies in criminal cases and criminal law. Thus, the protection does not apply in civil lawsuits.

The double jeopardy rule also bars multiple punishments for lesser included offenses. A lesser included offense is an offense that the government must necessarily prove to convict someone for a greater offense. Suppose the federal government charges a criminal defendant with burglary and trespass. The government attorney must prove the defendant trespassed to prove they committed burglary. Thus, the court cannot impose additional punishment on the defendant for both the trespass and the burglary.

When Does Double Jeopardy Attach?

Double jeopardy attaches at different times depending on the type of criminal trial. In a jury trial, it typically attaches when the court swears in the jurors. In a bench trial, it attaches when the court swears in the first witness to testify.

Once double jeopardy attaches, the government typically cannot call for a second prosecution of a criminal defendant for the same criminal offense. However, there are some exceptions to the general rule.

Double Jeopardy Exceptions

If the case results in a mistrial, the government may prosecute the defendant a second time. A mistrial may occur because of a hung jury. This means the jury cannot come to a verdict in the case. In such a situation, the government can typically request a retrial. However, if a mistrial occurs in the first trial due to prosecutorial misconduct, the court may bar a second criminal prosecution.

Suppose new evidence comes to light after a jury acquits a criminal defendant. Can the government recharge the defendant and request a new trial, then? No, it cannot. Prosecutors generally get one shot to prove their case.

However, suppose a jury convicts a criminal defendant of all their criminal charges. The defendant then appeals the conviction. If the appellate court decides there was not enough evidence to convict the defendant, it may reverse the conviction. In some cases, the government may be able to retry the defendant.

Double Jeopardy Protection: Federal and State Courts

In Benton v. Maryland, the U. S. Supreme Court ruled that the double jeopardy clause applies to state and federal proceedings. Before this ruling, an individual accused of violating state law could rely only on that state's double jeopardy protections. Some states offered greater protection against double jeopardy than others. Frequently, the level of protection offered was less than that offered by the Constitution. The Supreme Court said this was impermissible.

The Fourteenth Amendment's incorporation doctrine makes double jeopardy apply to all the states. The court reasoned that each state must afford criminal defendants at least the same protection from multiple prosecutions and punishments the federal government affords under the Fifth Amendment.

Consequently, state courts cannot provide less protection against double jeopardy than federal courts. States can, however, provide more protection than federal law provides.

Double Jeopardy Protection, Criminal Proceedings, and Civil Proceedings

The Supreme Court has also ruled that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude subsequent civil proceedings.

Courts have distinguished between criminal proceedings and civil or administrative proceedings. The distinction is based on each proceeding's different purposes. Because civil, administrative, and criminal proceedings serve different objectives, a single course of conduct can give rise to multiple trials in different types of courtrooms.

Criminal proceedings are punitive in nature. Such cases involve alleged violations of criminal law. Their purpose is to deter future criminal acts and to enact justice for the crimes.

Civil and administrative proceedings are remedial. Civil cases typically involve disputes between people. For example, they may involve personal injuries or contract disputes. Their primary purpose is to right wrongs rather than to deter.

What if civil or administrative proceedings are held against someone? Suppose they had been prosecuted criminally for the same act or omission. Double jeopardy does not apply. Nor does double jeopardy prevent criminal prosecution if a final civil or administrative determination on the same issue precedes it.

The multiple legal proceedings brought against O.J. Simpson illustrate these various objectives. In 1994, the prosecution charged Simpson with the first-degree murder of Nicole Brown Simpson and Ronald Lyle Goldman. The jury ultimately acquitted him in the criminal trial.

Despite Simpson's acquittal, the victims' families filed civil suits against him. The purpose of the criminal proceedings was to punish Simpson, incarcerate him, and deter others from similar behavior. The civil suits were designed partly to make the victims' families whole by compensating them for their losses.

Do You Have Double Jeopardy Protection? An Attorney Can Help

Double jeopardy is a fundamental constitutional right. While it may not protect against a subsequent civil case, it could keep you out of jail. However, there are very limited circumstances when it applies. Contact a local criminal defense attorney to find out whether you can add this to your defenses. An experienced attorney can provide more information regarding:

• Defense and litigation strategy for your criminal court case
• Your due process rights
• Whether you can raise a double jeopardy defense
• When double jeopardy applies

If you are facing criminal charges, do not delay contacting a criminal defense attorney near you.