Double Jeopardy: What it is and when it doesn’t apply

Double Jeopardy: What it is and when it doesn’t apply

We hear the term “double jeopardy” thrown around a lot in courtroom dramas and there’s even a 1999 movie of the same name. Despite—or perhaps because of—the fact that the term is so prevalent in popular culture, the true meaning is not well understood outside of the legal profession.

Double jeopardy, which is referenced in the Fifth Amendment, confirms that under most circumstances, a criminal defendant who has been acquitted (or even convicted) may not be tried again for the same offense. It also prohibits the application of more than one punishment for the same offense.

When does double jeopardy “attach?”

For a criminal defendant to be protected by this Fifth Amendment clause, the government must place him or her “in jeopardy.” This typically takes effect the moment that the court swears in the jury or, in a trial before a judge, after the first witness is sworn in and starts testifying. Each situation represents a point of no return where double jeopardy attachment is concerned.

Exceptions to the Double Jeopardy rule

After jeopardy has attached, certain events can cause it to terminate and allow authorities to try a criminal defendant once again for the same alleged crime. These events include:

  •      A hung jury and other instances of a mistrial
  •      The judge dismisses the case before a verdict is reached
  •      A conviction being reversed on appeal (Note: while the defense may appeal a conviction, the prosecution may not do the same for an acquittal)

An especially notable exception is the separate sovereigns rule. This condition permits a defendant to be prosecuted twice for the same offense if separate “sovereigns” (for example, the State of New York and the U.S. federal government) carry out their own prosecutions. One high-profile example was the Rodney King case. When California failed to secure a conviction of the officers who were seen beating Mr. King on videotape, the federal government stepped in, alleging that his civil rights had been violated. The resulting convictions of the officers in question were legally valid because they had been tried by separate sovereigns.

When deciding whether the double jeopardy protection prohibits further action in an individual case, courts will generally look at whether the new prosecution is based on the same facts and evidence. If it is, it will probably be disallowed.

If you are charged with any crime in the State of New York, the wisest course of action is always to seek out the expert counsel of a criminal defense attorney. With your freedom hanging in the balance, you are entitled to the best defense strategy possible. Julie Rendelman is a New York City criminal defense lawyer with more than 20 years of legal experience. She offers free consultations to those seeking legal advice. Call 212-951-1232 to learn more about your legal rights or visit