Double Jeopardy Rules in a Criminal CaseWhen you are charged with a crime, you may feel like you have no rights under the law. However, this is far from true. Under the United States Constitution, you have many protections when you face criminal charges. For example, you have a right to be given your Miranda warnings when you are taken into custody. Another important right you have is the protection against double jeopardy.

What Is Double Jeopardy?

The right against double jeopardy is another right that people have under the Fifth Amendment to the U.S. Constitution. The Fifth Amendment provides in part that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb…” This clause protects a criminal defendant from being charged twice for the same crime in the same jurisdiction. In Benton v. Maryland, the U.S. Supreme Court ruled that double jeopardy protections apply to individuals in both state and federal criminal cases. It protects against:

  • Second prosecution for the same offense after a conviction
  • Second prosecution for the same offense after the person is acquitted
  • Multiple punishments for the same crime

When a person is protected from further prosecution of a crime is complicated, and many court cases define what this protection is and when it applies. These general rules are applicable:

  • Criminal cases. Double jeopardy only applies in criminal cases. It does not apply in civil or administrative proceedings—even if a defendant is found not guilty by a jury.
  • Attachment of jeopardy. Under the Fifth Amendment, a person must be “placed in jeopardy” for the double jeopardy protections to apply. It does not apply just because a person was arrested. The criminal case must go farther along in the proceedings, and double jeopardy usually only applies once the jury is sworn in or the first witness takes his oath during a trial in front of the judge.
  • Same offense. The double jeopardy rule only protects against multiple prosecutions for the same offense. However, this does not protect against multiple prosecution for multiple crimes. For example, if a person is charged with a more serious drug crime and is found not guilty at trial, the prosecution could charge him with a lesser offense, such as possession of an illegal drug.
  • Termination of jeopardy. In order for the prosecutor to prosecute the defendant again, jeopardy must be terminated. This means that the case must conclude in some fashion. For example, an acquittal is a conclusion of the case against a person.
  • Same sovereign. The sovereign refers to the governmental entity that is prosecuting the accused—state or federal government. This means that if a state prosecutor loses a criminal case at trial, he cannot prosecute the person for the same crime twice. However, if the state crime the person is charged with committing is also a federal crime, he could also face federal prosecution for the same crime.
  • Multiple punishment. Prosecutors often charge defendants with more than one crime for the same criminal activities. If the person is convicted of the crimes, double jeopardy protects him from punishment for more than the most serious offense.

When Does Double Jeopardy Not Apply?

Once jeopardy is terminated, a person is not always protected against further prosecution. In these cases, the prosecutor may continue with criminal proceedings:

  • Mistrial. If a criminal case ends in a mistrial because the jury is a hung jury that could not reach a verdict, the prosecutor is permitted to retry a person for the same crime. This is because the case ended due to a technicality rather than a decision on the charges.
  • Jury misconduct. If there is some misconduct by one of the jurors, the trial may be terminated, and the prosecutor could be allowed to prosecute the individual again.
  • Appeal. When a defendant is found guilty by a judge or jury and wins an appeal that overturns the conviction, the prosecutor can retry him.

Are You Looking for a Criminal Defense Lawyer in Charlotte, NC?

If you are facing criminal charges, you need to speak with an experienced criminal defense attorney as soon as possible. Please contact us online or call our Charlotte office directly at 980.207.3355 to schedule your free consultation.


Howard W. Long, II
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Charlotte Criminal Defense and DWI Lawyer