If you want to understand how prohibition works against double jeopardy, you first have to understand what it is and where it applies. Double Jeopardy is when a criminal defendant cannot be tried twice for the same crime based on the same conduct and evidence. Take for example a case where a man murders somebody and then robs a bank. They can’t be charged for both murder and manslaughter in this case, but they could be charged for burglary and murder. After a person is acquitted, they cannot be tried for the same crime because the deed is done (Norton). This becomes an issue when the prosecution discovers new evidence after the defendant is left go for their crimes – this is too bad for prosecution, because they absolutely cannot be tried again. Courts need to make a decision of whether it is Double Jeopardy or not based on evidence presented.

The Various Elements of Double Jeopardy Explained

  • Criminal Cases: Double Jeopardy does not apply to civil or administrative proceedings, only criminal cases. The DMV is allowed to punish separately for related crimes as well as a defendant being tried for monetary damages if a victim wants to push that.
  • Attachment of Jeopardy: A defendant must be placed “in jeopardy” for the Fifth Amendment clause to apply. Just because criminal charges were filed, doesn’t necessarily mean it already applies. Jeopardy will sometimes be attached when the court swears in the jury and the first witness takes oath.
  • Jeopardy Terminated: Jeopardy must be terminated for the government to reprosecute. It is also terminated when a judge finds the evidence insufficient to convict the defendant and doesn’t let the case go to the jury. Sometimes it is decided that there will be a retrial due to juror misconduct, which is when the prosecution may be able to prosecute the defendant all over again. However, it must be shown that there is a critical need to retry the defendant. This can be either very complicated or not too complicated at all with the right information.
  • Same Offense: Through Double Jeopardy, different prosecutions are prohibited for the same offense. However, this does not protect a defendant from multiple prosecutions for multiple offenses. If a lesser-included charge is part of a bigger charge, they may be able to push for that above all.
  • Same Sovereign: If a state is prosecuting someone, this does not prevent the federal government from doing the same. This applies when altogether separate sovereigns are trying somebody.
  • Multiple Punishment: Multiple charges are often filed against defendants for the same criminal conduct. If there are two crimes at play that are the same in nature, the judge must only impose the punishment for the greater crime.

One of the biggest things that comes into play with Double Jeopardy is the fact that things must be fair. If it is not rightful to charge a defendant twice because both crimes are very similar, then circumstances may make it so that a defendant is protected (Schwartzbach). If you feel like your case is unfair and you need legal representation, you can call the Blair Law Firm for more guidance. We will work with you to get you what you rightfully deserve.

Works Cited:

  1. Jerry Norton. Encyclopedia Britannica, 2015. Web. Accessed Dec 8, 2015. http://www.britannica.com/topic/double-jeopardy-law
  2. Micah Schwartzbach. Nolo, 2015. Web. Accessed Dec 8, 2015. http://www.nolo.com/legal-encyclopedia/the-prohibition-against-double-jeopardy.html