How Double Jeopardy Works

Under the Fifth Amendment to the U.S. Constitution, a defendant may not be retried for the same offense once jeopardy has attached. Many people have a fundamental understanding that they can only be tried for the same offense once. If your acquitted by a jury, the state does not get to refile charges and take another bite at the apple. However, there are questions which arise regarding what constitutes the same offense and when does jeopardy attach. Anyone who has seen the movie Fracture with Ryan Gosling and Anthony Hopkins understand there are some exceptions to the general jeopardy rule that can land a person acquitted of a crime back in a court room.

When Jeopardy Attaches

Jeopardy attaches when a jury is worn in; when a witness is sworn in if  it is a bench trial; and upon commencement of the proceedings if a juvenile matter. Jeopardy does not attach in civil proceedings except that juvenile proceedings are often considered civil.

Exceptions to Double Jeopardy

Even if a person has been tried, there are a few exceptions in which that person may be retried. The first is a hung jury. If the first trial ends in a hung jury, meaning the jury cannot decide after meaningful deliberation, the defendant can be retried. Another exceptions involves a manifest necessity. If the court finds it is necessary to abort the original trial or the trail is terminated at the behest of the defendant, there may be another trial. Under some circumstances the state may seek a retrial if the defendant won on an appeal. Finally, charges may be reinstated when a defendant breaches his/her plea bargain.

Same Offense

In determining whether two offenses are the same, consider the following general principles: First, two crimes are the same offense unless each crime requires proof of an additional element. Second, multiple punishments are permissible if there was a legislative intent to have cumulative punishments. Third, attachment of jeopardy for a greater offense bars retrial for lesser included offenses. And finally, jeopardy does not bar a subsequent civil action.

Separate Sovereigns

Generally speaking, the state and the feds can charge an individual for the same conduct without a double jeopardy issue. This means you could be charged in federal court and in state court for charges arising out of the same conduct.

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