Oops, I Did it Again! Does Double Jeopardy Apply?

Double jeopardy exists to protect individuals from being repeatedly charged or prosecuted for the same criminal offense. Prosecutors cannot get a “redo” if they fail to prove their case the first time. Once a verdict has been issued in your criminal case, double jeopardy attaches and prevents the prosecutor from trying you for the same criminal offense. However, double jeopardy can only be applied to criminal cases under state or federal law.

When Does Double Jeopardy Apply?

Double jeopardy is a right established by the Fifth Amendment to the U.S. Constitution. The Fifth Amendment is made applicable to the states under the Fourteenth Amendment. Below are circumstances where double jeopardy prevents an individual from being re-prosecuted for the same crime:

• The individual was found not guilty of the crime or acquitted at trial; or
• The individual pled guilty or was convicted of the crime at trial.

As with any rule, there are a few situations where double jeopardy does not apply. For example, if the trial ends in a “hung jury” or “deadlocked jury,” which occurs when the jury fails to reach a unanimous decision. When a hung jury occurs, the prosecutor can re-prosecute the individual for the same crime. Additionally, double jeopardy does not apply if the prosecutor dismisses the criminal charge but later refiles the same charge.

What About a Mistrial?

If a criminal trial ends in a mistrial being declared, it is possible double jeopardy will not apply depending on the circumstances. For instance, if the defendant does not request or consent to the mistrial but a “manifest necessity” to terminate the trial exists, double jeopardy may not apply. Also, if the defendant requests or consents to the mistrial, double jeopardy may not apply. When you are a criminal defendant faced with a mistrial, your criminal defense attorney can explain whether double jeopardy applies in your specific circumstances.

What if My Case Has Civil and Criminal Charges?

There are many instances where an individual faces both civil and criminal charges. For example, if you cause a car accident while driving while under the influence of drugs or alcohol, the prosecutor can file both civil and criminal charges. In this scenario, you will be prosecuted for DUI, which is a criminal charge, but also personal injury charges for the injuries you caused the other driver, which falls under the civil penalty umbrella. A defendant cannot claim that double jeopardy applies even though the penalties all arise under the same DUI accident. It should also be noted that a defendant may face prosecution in state and federal court for the same criminal incident, which includes both state and federal crimes, and double jeopardy does not apply.

When is a Crime the “Same?”

You might be surprised to learn that determining if a crime is the “same” for purposes of double jeopardy is not always simple. The court must determine if crimes that are similar and arose out of the same incident are distinct enough to constitute separate crimes or if they are substantially the same and violate double jeopardy rights. Typically, the court will examine whether the multiple charges arising out of a single criminal act require separate elements of proof that are not included in the other charges. A prosecutor must demonstrate that each criminal charge requires a distinct and exclusive element of proof from other charges to prevent double jeopardy from applying.

You Should Not Face Criminal Charges Alone – Contact Us Today

If you are facing criminal charges and have concerns that double jeopardy applies, it is critical to seek the help of experienced criminal defense professionals. Our BMO criminal defense attorney legal team provides upfront communication and aggressive representation of our clients. Call Babbit, Mitchell & Ogle at (405) 692-7676 to ensure your rights are protected and to receive the best possible defense.