The federal double jeopardy clause is a crucial part of the Fifth Amendment. It prevents the state or federal government from persecuting a defendant twice for the same crime. Specifically, California Penal Code 697 reiterates this kind of protection at the California state level.
There are many aspects that a defendant has to learn to apply double jeopardy in different situations. This article aims to shed light on what double jeopardy means and how your lawyer can help you.
The Basics of Double Jeopardy
Everything to do with double jeopardy is included in the United States Constitution Fifth Amendment. Under the double jeopardy clause, the following factors come into play:
- A defendant shouldn’t be prosecuted after the acquittal of a particular offense.
- There should be n double conviction for a similar crime.
- The court should not punish defendants several times for the same crime.
Double jeopardy is a well-established criminal concept that bars a state or federal government from repeatedly convicting a defendant. This concept protects a defendant from undue pressure and expenses since governments possess immense resources and power to prosecute someone as many times as possible. It also enhances the possibility of prosecution if an individual is found guilty after an initial trial.
Instances that You Can Raise Double Jeopardy as a Legal Defense Strategies
In particular situations, the state or federal criminal justice system can’t re- prosecute a defendant for a similar case. In this situation, the defendant is considered "once in jeopardy" or "has jeopardy attached."
Therefore, you can use jeopardy as a legal defense strategy in your case. Below are some of the instances where double jeopardy applies as a legal defense strategy:
At the beginning of the Trial, when the Jury or Witness Has Been Sworn In
Defendants can use double jeopardy to prove that they were placed on a second trial for the same offense. The case doesn't necessarily have concluded or partially concluded for this defense to apply. The trial must have begun for this defense to apply. After the trial starts, you will be in jeopardy of the charges you're being tried for. Therefore, the prosecution cannot file charges for the same allegations.
Specifically, defendants can use double jeopardy in a bench trial when the jury members are selected and sworn in. If a case isn't tried through a jury, jeopardy attaches after the first witness has been sworn in.
When the prosecution tries to use the circumstances that led to your initial charges to make new charges, you could use double jeopardy as a defense to avoid being prosecuted again for the same allegations, even if a conviction was made.
Mistrial or Discharge of a Juror Without the Defendant's Consent
Illegal discharge of a juror without the defendant's consent allows the use of double jeopardy as a defense in these circumstances in a retrial after a jury trial has started. However, some particular aspects referred to as “legal necessity” must legally apply to discharge a jury member. In these circumstances, this defense will not be available. A legal necessity arises from the following aspects:
- When then juror is ill or is incapacitated
- During a juror's absence
- When jury members can’t agree on something
- The absence or incapacity of a defense counsel, judge, or defendant
After an Acquittal of a Case
The prosecution cannot appeal an acquitted case, regardless of how wrong the decision was. In that case, double jeopardy works as a reliable defense to the additional prosecution made for a similar offense.
After A Dismissal of a Case
Dismissals based on legal grounds allows the use of double jeopardy as a defense strategy. However, not all case dismissals will enable the use of this defense. The following forms of discharge can be attached as a defense for jeopardy:
When a Defendant is Discharged to Become a Witness
If more than one defendant is charged with a crime, the court can discharge one defendant and adopt them as witnesses. The court might adopt a defendant as a witness when insufficient evidence against one of the defendants involved.
In these two circumstances, you can use double jeopardy as your legal defense strategy.
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In a Misdemeanor Case that Has Been Dismissed
A misdemeanor case that is not brought on time allows double jeopardy as a legal defense strategy. However, if there is a felony attached to the misdemeanor charges in similar allegations, the double jeopardy defense doesn't work.
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Discharge of a Felony for the Second Time
A felony case can be dismissed if brought to court after the statute of limitation has passed. In these circumstances, you can use double jeopardy as your legal defense strategy.
When a Defendant Has Been Convicted of a Particular Crime
Convictions for a particular crime allow the use of double jeopardy as a defense. This means, if a defendant is sentenced to a specific crime, the state cannot try to charge and prosecute the defendant for that particular crime.
It doesn't matter whether you plead guilty to the charges or were tried and convicted for the crime. Double jeopardy defense applies for both scenarios.
After a Plea Deal
The criminal justice system allows instances for plea deals for particular cases. These instances enable the defendant to be prosecuted for a lesser charge in a plea deal. If you plead to a lesser offense, you can use double jeopardy as a defense to any subsequent charges based on the similar circumstances of your initial charges.
Retrial after a Case Reversal or Appeal
You can use double jeopardy as a defense in the circumstances provided below:
- After a conviction for a crime at a court trial.
- When you appeal to a conviction.
- When the court grants allow a defendant to appeal, reverse the judgment, and remand a new trial.
- The prosecution of the new trial brings new charges greater than the charges at the initial trial.
In this situation, a double jeopardy defense bars the prosecutor from charging you with a more severe crime at the appealed trial than the charges of your initial trial. It also blocks the court from imposing a severe penalty.
When Particular Crimes Are Included in a Particular Offense
Double jeopardy is also available when there are new charges or included crime. This applies when a single action gives rise to several criminal offenses. Every crime in California has several elements that the prosecution must prove.
A crime becomes a “necessary include offense” of another if its elements are similar to those in another case. In this situation, double jeopardy works as a relevant defense to an offense’s subsequent charges that are necessarily included in the initial charges.
Here is an example that elaborates this instance:
Mike fights with Jeff outside a bar. As a result, Mike hits Jeff on his head with a bottle. Mike is then arrested and prosecuted under California Penal Code 245(a)(1): Assault with a deadly weapon. However, the court acquitted Mike of these charges, but the prosecution then charges Mike with Simple Assault under California Penal Code 240.
In this situation, Mike can rely on double jeopardy for the subsequent simple assault charges. The prosecution has to prove similar elements in these two charges beyond a reasonable doubt, meaning that the simple assault charges are necessarily included in the ADW offense. Therefore, jeopardy will attach to the simple battery charges when Mike was acquitted of ADW.
This principle will still apply if the first charge is a lesser included offense than the subsequent one. For example, suppose Mike's initial charges were simple assault and were acquitted, double jeopardy would still work as a defense strategy to the new ADW charges.
Ideally, the double jeopardy defense strategy assumes that a defendant can't be guilty of a subsequent charge if the initial one shares the same elements of the crime with it.
Instances when Double Jeopardy Doesn't Work as a Legal Defense
There are particular circumstances where double jeopardy doesn't work, even when this principle applies to several situations. These circumstances are discussed below:
When Subsequent Civil Proceedings are Arising from a Criminal Proceedings
You can only use double jeopardy as a legal defense strategy if repeated attempts for criminal prosecution exist. Therefore, a previous court proceeding cannot prevent another prosecution, even when both cases arise from a similar event. Below is an example that explains this situation.
Andrew runs a red light and hits a pedestrian while driving under the influence. Unfortunately, the pedestrian dies from the injuries sustained from the accident. The pedestrian's family sues Andrew in a civil court, which awards them $100,000 in damages.
Then, the state later charges Andrew with gross manslaughter while intoxicated. In this situation, Andrew cannot use double jeopardy to defend against these new charges. In this situation, the prior civil proceeding doesn't jeopardize the subsequent charges.
During Pre-trial Criminal Proceedings
As stated above, jeopardy can’t work as a legal proceeding until trial. Therefore, any criminal proceeding that occurs before the trial cannot work as a double jeopardy defense. Again, look at the example provided below for a clear outlook.
James is arrested and charged with robbery under the California Penal Code 211, which is a felony. James pleads innocent during the criminal arraignment hearing, allowing the case to proceed to the preliminary hearing. If the judge finds out that your case has insufficient evidence to proceed to a trial, they might decide to dismiss your case.
In this situation, James cannot assert double jeopardy as a legal defense strategy against any subsequent charges that will be made since it can't be attached during the arraignment or preliminary hearing.
When there are Multiple Acquittals and Convictions for the Same Case
A defendant can double jeopardy to protect him or herself from multiple trials. Even so, it can't work when there are acquittals, dismissals, or convictions of a different count for the same charges. Take a look at the following example for a better understanding of this principle.
Debbie fights with Mona and faces a battery and assault count. The charges proceed to trial, but the jury acquits her battery charges and finds a dead end at the remaining assault charges. Therefore, the judges declare the assault charges as a mistrial.
If the state tries to retry Debbie with the assault charges, she can't use double jeopardy as a legal defense strategy since the battery and assault charges are separate counts for the same charges.
When An Inmate is Facing Disciplinary Proceeding
After violating prison conduct, disciplinary actions against a prisoner cannot bar another prosecution made for the same conduct. The following examples elaborate this aspect:
Nick, a California state prison inmate, is placed in solitary confinement for twenty days after being found with a prison-made knife. He is then prosecuted and charged under California Penal Code 4502: Possession or manufacture of a weapon in a penal institution. Nick can't use double jeopardy as a legal defense strategy to the subsequent criminal charges in these circumstances.
The confinement sentence is a prison disciplinary rule and doesn't extend Nick's prison term. Therefore, double jeopardy cannot be attached as a defense since this is an administrative disciplinary measure.
During a Parole or Probation Revocation Hearing
A probation or parole revocation hearing doesn't count as a subsequent criminal charge since it extends the initial conviction. Therefore, you can’t use this situation as a defense strategy.
When there are Issues with the Validity of the Court
Jeopardy only applies when there is a valid ground for a conviction for a particular crime. Therefore, if a court has no authority over a specific legal matter, the resulting conviction is void. Therefore, you rely on the double jeopardy legal defense strategy for your subsequent criminal prosecution in a court with proper jurisdiction over the matter in question.
When a New Trial is Granted or During a Reversal Case
If the court grants the motion for a new trial after convicting a defendant, the new trial becomes an entirely new trial. This means that the court assumes that there is no previous trial against the defendant. At this point, the double jeopardy defense doesn't work in the new case.
Please note that this instance is different from the one described above. In the above situation, double jeopardy only works if the prosecution charges you with a greater offense in the new trial than the initial trial.
When An Allegation is Discharged by Necessity
Recall when a double jeopardy defense works when there's an unwarranted discharge of a juror; this defense cannot work when there're legal necessities for the dismissal. A legal necessity results from a juror’s dismissal when they can't agree, and there's an absence of a defendant, a judge, or a defense counsel.
After a DMV License Suspension in a DUI Case
The DMV seeks to suspend the driver's license of defendants arrested and prosecuted with DUI-related cases like DUI of drugs and vehicular manslaughter. Anyone can pursue a California DMV hearing.
A defendant can't attach a double jeopardy defense during an APS proceeding. Therefore, a DUI defendant cannot use this defense in a subsequent DUI prosecution, even after determining the driver's license during the APS hearing.
When You're Prosecuted by the Federal Authorities and State for a Similar Conduct
Federal authorities and the state are deemed as separate sovereignty. Therefore, a prosecution from a California court doesn't allow the use of double jeopardy if you face a criminal charge in a federal court.
When You're Charged in Two Different States for the Same Criminal Conduct
The double jeopardy principle doesn't work when you're charged in different states, similar to a charge made in the federal and state court. This falls under the concept of dual sovereigns since both states work as separate sovereigns. However, one state can determine that the conviction made in the first state is sufficient, meaning that it won't necessarily bring the charges in its court. It's up to the discretion of the prosecutors in the other state to make this determination.
The dual sovereignty principle came into play when a defendant hired two men to kidnap his wife in Alabama but later dumped her body in Georgia. The defendant pleaded guilty in a Georgia court in exchange for life imprisonment but was later convicted for murder related to kidnapping, imposing a sentence to death conviction in Alabama.
Although the defendant claimed a double jeopardy defense to the Alabama charges, the Supreme court held that the double sovereignty doctrine stands since the action violates two sovereigns' "peace and dignity" regarding these two distinct offenses.
Find a Reliable Criminal Attorney Near Me
The concept of double jeopardy is intricate, like many other criminal law concepts. That's why it's critical to seek the help of a skilled criminal attorney to help you understand the complexities of using double jeopardy as a defense for your criminal charges.
Our Los Angeles criminal defense lawyer will use our skills and experience to develop effective defense strategies to achieve the best possible outcomes for our clients in Los Angeles, CA, and its surroundings. Contact us today at 424-333-0943 and experience our compassionate team that will relentlessly fight to protect your rights and interest.
