What is ‘Double Jeopardy’ in Criminal Law?

September 06, 2022 by Seppi Esfandi in California  Federal Crime  
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One Crime, One Case, One Outcome

American Justice System

Double jeopardy is a significant part of the United States Constitution. It comes from the second clause of the Fifth Amendment and keeps an accused individual from being convicted and penalized twice for the same crime. The Double Jeopardy clause is a type of procedural defense that says the government cannot try to convict an offender of a crime for which they have already been found not guilty, and it keeps them from getting more than one punishment for the same crime. It makes the government follow the results of its system of criminal justice.

California Justice System

Similarly, California Penal Code 687 states,

“No person shall be prosecuted for the same public crime for which he has been previously prosecuted and for which he has been convicted or acquitted.”

Distinct sovereigns, such as the federal and state governments, may prosecute an individual under double jeopardy. A criminal may, for instance, face prosecution in both federal and state court for the same act of bank robbery. Since national and state governments are considered separate courts of law with independent authorities, being prosecuted by both would not be a violation of the Double Jeopardy provision.

Do I Have a Case for Double Jeopardy?

The United States Supreme Court first established double jeopardy in the case of Serfass v. the United States. Whenever one of the following situations arises, double jeopardy applies:

  • The jury has been selected or has been sworn in;
  • The witness is sworn in;
  • Nonconsensual mistrial of the defendant;
  • Involuntary dismissal of the jury (unless there is a legal requirement, such as a hung jury) without the defendant’s permission;
  • Acquittal;
  • Cases in which the defendant is released and then turns to the state’s witness
  • The dropping of charges for a lesser offense;
  • Second felony dismissal;
  • Convictions;
  • Arrangements were reached in the form of plea bargains;
  • retrial after a successful appeal and overturn; and
  • Violations must be listed (if a crime should have been included with the initially charged offense).

Once that threshold is reached, the prosecution is barred from proceeding with a second trial, barring a mistrial. A judge may overturn a jury’s guilty conviction, but not a not guilty one, regardless of how obvious the error is.

Double Jeopardy Does Not Always Apply

A person may indeed be prosecuted twice for the same crime in California under certain conditions when double jeopardy does not apply, such as:

If Civil Disputes Emerge from Criminal Disputes

While the concept of double jeopardy precludes a person from being tried twice in criminal court for the same offense, it has no bearing on civil court procedures. Suppose someone is driving while intoxicated and causes an accident that results in a fatality. They might be charged with gross vehicular manslaughter. The state would not re-file criminal charges against the defendant after a not-guilty verdict, but the deceased’s family members would still be entitled to submit a civil claim. It’s also true that even if a defendant is found not guilty in a civil case, the state may file charges against them in criminal court.

In Pretrial Withdrawn Cases

Double jeopardy is being tried twice for the same crime, which is severe. Repeated criminal charges may be brought so long as the case is not tried. You may be re-arrested and charged with the same offense if your first charges are dismissed before trial.

When A Single Trial Entail Multiple Charge

The concept of double jeopardy was developed to protect individuals from being repeatedly harassed and prosecuted for the same crime. A person who faces many counts may be tried for further crimes at the same trial, even if they are not guilty of some of those charges. For example, if an individual is arrested and tried on arson, burglary, and assault, but the jury deadlocks on the burglary charge but not the others, the individual might be retried for the burglary charge even if the other charges cannot be.

Retrial or Appellate Reversal

If a defendant is found guilty but later receives a new trial at the court’s discretion or if their conviction is overturned on appeal, the new court hearing will be conducted as if the first trial never happened. Thus, the defense of “double jeopardy” cannot be used in the subsequent trial.

Necessary Termination

In most cases, the principle of double jeopardy will not prevent a second prosecution after a case has been dropped for legal reasons. This is a case of legal need because of: A juror’s sickness or inability to serve, a juror’s absence, a hung jury, the defendant’s illness or inability to appear in court, the defense attorney’s absence, or the judge’s absence.

Consult With a Pro

Are you wondering if you’ve been a victim of double jeopardy? Give a California Criminal Defense Attorney a call, we’re here to help.

Need an Attorney? CALL NOW: 310-274-6529

Seppi Esfandi is an Expert Attorney who has over 21 years of practice defending a variety of cases.

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December 3, 2019
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