What Keeps Someone From Being Tried Again

Updated March 9, 2022

How Does "Double Jeopardy" Work? (A former DA explains)

Double jeopardy is an American Ramble principle that bars the authorities from trying a person more than than once for the same conduct. Information technology protects you from being prosecuted again for the same offense post-obit an amortization or a confidence.Double jeopardy also protects you from beingness subject to multiple punishments for the same crime.¹

Butdouble jeopardy in California doesn't apply to all situations. For example, it doesn't stop the D.A. from prosecuting you lot for DUI fifty-fifty if the DMV has already punished you by suspending your commuter's license.

To help you understand when double jeopardy does and does not use, and when it serves a valid legal defense force to a crime, our California criminal defense lawyers² will address:

The lady of justice standing next to a text that reads Double Jeopardy.

Double jeopardy is an American Constitutional principle that bars the government from trying a person more than once for the same conduct.

1. What is the Legal Defence force of Double Jeopardy?

The Double Jeopardy Clause has been written into the Fifth Subpoena of the United states of america Constitution.³ The double jeopardy clause guarantees that there volition be

no prosecution later on acquittal for the aforementioned crime,
no double convictions for the same offense and,
no multiple punishments for the aforementioned offense.

The double jeopardy clause of the United States Constitution has also been adopted into California state police through California Penal Code 687.^four

Information technology is a deeply entrenched concept of criminal police that a State should not exist immune to brand repeated attempts to convict an individual for an alleged offense.^v The government possesses immense powers and resources. Repeated attempts at a criminal confidence subjects a person to undue embarrassment and expense. It also increases the chances that an innocent individual may be found guilty.^{half dozen}

2. When Tin I Raise the Legal Defense of Double Jeopardy?

After sure junctures in the criminal court process, the government loses its ability to re-prosecute a defendant for the same criminal offence. When this happens, we say that the defendant was already "once in jeopardy" or that "jeopardy attaches."

But when exactly does jeopardy attach? Below are the most common instances where jeopardy has attached and therefore the defence of double jeopardy applies:

2.i. Trial begins: the jury sworn in or witness sworn in

You will be entitled to heighten the double jeopardy defense force if yous can show y'all were previouslyplaced on trial for the same offense.⁷

It is not necessary that the case is concluded or even partially concluded. All that is required is that the trial hasbegun. One time the trial has begun a accused is in jeopardy as to whatever charges he or she is being tried for.⁸ This generally means he cannot exist prosecuted over again for those same charges.

In a jury trial, jeopardy attaches when

the jury choice is completed and
when the jury members are sworn in.⁹

In a court trial (cases without a jury, tried to a judge) jeopardy attaches when the outset witness is sworn in.¹⁰

If either of these circumstances previously occurred in charge against yous, you tin can enhance the double jeopardy defence force to prevent prosecution for that same charge (or an included offense) once again.

2.2. Discharge of jury or mistrial without defendant's consent

Once a jury trial has begun, any unwarranted belch of the jury without a accused's consent, gives ascent to the defense of double jeopardy if retried.¹¹

Nonetheless, if there is some "legal necessity" that required the jury to be discharged the example may be retried.¹² In these circumstances, the double jeopardy defense is not bachelor.

Legal necessity may arise from

a juror's illness or other incapacity,
A juror's absence,
the inability of the jurors to agree (hung jury), or
the incapacity or absenteeism of the accused, defense counsel, or the judge.¹³

ii.three. Acquittals

The prosecution cannot appeal a judgment later an amortization, no affair how wrong the judgment may appear. Thus double jeopardy will serve equally a complete defense to an additional prosecution for the same offense in the same jurisdiction.^xiv

2.4. Dismissals

Not all dismissals will requite rise to a double jeopardy defense. However, any dismissal based on the merits of the charge volition requite rise to a double jeopardy defence.^fifteen

In addition, dismissals based on the following circumstances will attach jeopardy:

Discharge of a Accused to go a witness

In a case where there are 2 or more defendants charged with an crime, the court may discharge a defendant at whatsoever time to become a witness for the prosecution.¹⁶ A courtroom may also conclude that at that place is insufficient show against i defendant. In this circumstance, the court must belch that defendant and so that he tin be a witness for the prosecution.¹⁷

In both of these circumstances, the double jeopardy defense is available.¹⁸

Dismissal of a Misdemeanor

Dismissals of misdemeanors for failure to bring the case to trial in fourth dimension generally give rise to the double jeopardy defense force.¹⁹

However, if the misdemeanor is charged together with a felony in the aforementioned instance, the defence force may non be available.²⁰

2nd Dismissal of Felony

A second dismissal of a felony for failure to bring a instance to trial in time volition mostly give rise to the double jeopardy defense.²¹

2.5. Convictions

Like acquittals, a conviction of a particular law-breaking gives ascent to a complete double jeopardy defense to the subsequent identical charge.²² In other words, in one case a criminal accused has been convicted of a offense, the authorities cannot come around and try to prosecute him again for the same crime.

It does non matter whether the defendant voluntarily plead guilty or whether he or she was convicted after a trial. Jeopardy attaches in both scenarios.²³

2.6. Plea Deals

A prosecutor may expressly stipulate that a accused volition be bedevilled to a lesser degree or to a lesser law-breaking than what they are charged with, as office of a plea deal. If you plead to this lesser law-breaking as part of a plea deal, then the double jeopardy defense force volition be available to a subsequent instance on the greater offense. ²⁴

Let'due south take a await at an example:

Example: Jason is charged with a DUI in California. Equally function of a plea deal he agrees to plead guilty to the lesser California wet reckless offense. One time he pleads guilty, double jeopardy will serve as a complete defense if the prosecution subsequently tries to charge him for a DUI again based on the same facts.

2.7. Retrial after appeal and Reversal

The double jeopardy defense is available in the post-obit circumstance:

The defendant is convicted of an crime at trial,
the defendant appeals the conviction,
the defendant's appeal is granted, the judgment is reversed and the case is remanded for a new trial,and
the prosecution at the new trial charges a greater offense than what was charged at the original trial.

Double jeopardy bars the prosecution from charging a greater crime at the new trial than what was charged at the original trial.²⁵ It as well bars the imposition of a greater penalisation at the new trial.

Let'southward look at an example:

Case: Todd is charged and convicted of 2nd degree murder. He appeals the conviction. The conviction is reversed and remanded for a new trial. At the new trial the prosecution seeks to charge Todd with first degree murder.

A double jeopardy defense would prevent the prosecution from charging Todd with first degree murder at the new trial. By convicting Todd of the lesser offense of second degree murder at the first trial, the jury impliedly acquitted Todd of the greater offense of first degree murder.

2.8. Necessarily Included Offenses

The defense force of double jeopardy is available to subsequent charges of the same orincluded offenses.²⁶

A single act may requite ascension to multiple criminal offenses. Each California criminal offense consists of several elements. In order to captive someone of a criminal offense, a prosecutor must prove each element of the criminal offense beyond a reasonable doubt.²⁷

In California, a crime is a necessarily included offense of some other crime if all its elements are likewise the elements of some other offense.²⁸ A double jeopardy is a complete defence to a subsequent charge for an offense necessarily included in the offense start charged. ²⁹

Permit's see an example:

Case: Jeff gets into a fight with Mike outside of a bar. Jeff hits Mike over the caput with a beer canteen. Jeff is arrested and charged with the California crime of assault with a mortiferous weapon per Penal Code 245(a)(1) PC (ADW) against Mike. Jeff is acquitted of the ADW charge. Yet, the prosecution subsequently charges Jeff with the California criminal offense of simple assault per Penal Code 240 PC.

Jeff volition be able to raise double jeopardy as a consummate defense to the simple assault accuse. Every element of Penal Code 420 assault is also an element of ADW. Thus set on is a necessarily included crime of ADW. Jeopardy attached to the battery charge and all its included offenses when Jeff was acquitted.

This principle as well applies fifty-fifty if the get-go prosecution is for the bottom included offense.^xxx If Jeff had showtime been charged with simple assail to begin with, and acquitted of that accuse, the double jeopardy clause would still be a defense to a subsequent accuse of assault with a deadly weapon per Penal Code 245(a)(one).

If he is not guilty of the bottom included law-breaking of attack, he cannot exist guilty of bombardment. Thus double jeopardy can exist raised as a defense.

A courtroom with the judge seated at her bench.

Double jeopardy only protects against repeated attempts at criminal prosecution. However, a prior civil courtroom proceeding does non prevent a subsequent criminal prosecution.

3. In what Circumstances Does the Double Jeopardy Defence force Non Employ?

There are also a number of situations in California criminal law where people suspect that double jeopardy would apply, merely in fact information technology does not. Let's hash out some of these.

3.1. Civil proceedings arising from the same facts as criminal proceedings

Double jeopardy but protects against repeated attempts atcriminal prosecution. Nonetheless, a prior civil courtroom proceeding does not prevent a subsequent criminal prosecution, even though both cases may arise from the same events.³¹

Example: David is driving while nether the influence of alcohol. He runs a red light and hits Steven, a pedestrian. Steven dies from his injuries. Steven'southward family sues David in ceremonious courtroom for damages on a wrongful death action. Steven's family is awarded $i,000,000.00 in damages.

Subsequently the state charges David with gross vehicular manslaughter while intoxicated.

David volition not exist able to raise a double jeopardy defense confronting the gross vehicular manslaughter while intoxicated accuse. This is because the previous civil proceeding did non attach jeopardy for the purposes of a criminal case against David.

iii.2. Criminal pre-trial proceedings

Every bit previously discussed, jeopardy does not adhere to a criminal case until the defendant isplaced on trial.³²

Thus, criminal proceedings that occur prior to the trial do not give rise to the double jeopardy defense.

Example: Brandon is arrested for the California offense of robbery per Penal Code 211, a felony. Brandon pleads not guilty at his criminal arraignment hearing. He then appears at his preliminary hearing. At the preliminary hearing, the gauge finds that there is insufficient testify to take the case to trial, and dismisses the Penal Code 211 case.

If the prosecution subsequently re-files the robbery accuse against Brandon, he volition not be able to assert a double jeopardy defence force. Jeopardy does not attach during an arraignment hearing nor does it at a felony preliminary hearing.³³

3.3. Single trial with multiple convictions or acquittals

The double jeopardy defence force is designed to protect against the harassment ofmultiple trials. However, double jeopardy is inapplicable to acquittals, convictions, or dismissals of separate counts in aunmarried trial.³⁴

Example: Debbie is charged with one count of bombardment and one count of set on. Both charges arose out of a fight Debbie had with Mona. The instance goes to trial. The jury acquits her of the bombardment accuse merely deadlocks equally to the assault charge. The approximate declares a mistrial as to the assail accuse.

If the state seeks to re-effort Debbie every bit to the assault charge, she will not be able to assert a double jeopardy defense. This is because the bombardment and assault charge were separate counts in the aforementioned trial.

3.4. Prison Disciplinary Proceedings

Disciplinary actions taken against prison inmates for violations of prison house conduct, do not bar subsequent criminal prosecution for the aforementioned conduct.³⁵

Example: Nick is an inmate in a California land prison. He is punished with 20 days in solitary confinement afterwards being constitute in possession of prison-made 'shanks.' He is subsequently charged and convicted of a violation of California Penal Code 4502 PC, possession or manufacture of a weapon in a penal institution.

Nick will non be able to assert a double jeopardy defense against the Penal Lawmaking 4502 charge.

The solitary confinement was a disciplinary measure for a violation of prison house rules. Nick's prison house sentence was not extended. Jeopardy does not adhere for mere authoritative disciplinary measures.

3.5. Revocation of Parole or Probation

A parole or probation revocation hearing is not a second criminal prosecution, as they are extensions of the original conviction.³⁶ Thus it is not subject to a double jeopardy defence.

3.six. Competency of court

Jeopardy does not adhere to any proceeding unless there is a possibility of a valid conviction of the defendant.³⁷ If it establish that a court does non take jurisdiction over a matter, any resulting conviction would be void. Jeopardy does not adhere in a court that does non have jurisdiction.³⁸

Thus, a double jeopardy defense would not be available in a subsequent criminal prosecution in a court that does have valid jurisdiction over the matter.³⁹

iii.seven. New trial or reversal on appeal

If a defendant is bedevilled just the court then grants his motion for a new trial, or if the judgment of conviction is reversed on appeal, the new trial is treated equally if in that location had been no previous trial. ⁴⁰ Thus double jeopardy will not be a defense at the new trial.

3.8. Belch past necessity

If a case is dismissed as a issue of a legal necessity, double jeopardy will generally non bar a subsequent prosecution.⁴¹

Legal necessity arises from a juror's illness or other incapacity, juror's absence, inability of the jurors to agree (hung jury), incapacity or absence of the defendant, defense force counsel, or the estimate.⁴²

iii.nine. DMV license suspensions in DUI cases

If you are arrested for DUI, DUI of drugs, or Vehicular Manslaughter, the Department of Motor Vehicles will seek to suspend your driver'south license.

Everyone is entitled to a California DMV hearing after DUI arrest to challenge whether a driver's license suspension should exist imposed. The DMV calls these hearings "Authoritative Per Se" hearings or APS.

However, jeopardy does not adhere during APS proceedings. Thus, double jeopardy will non be a bar to a subsequent criminal prosecution even if a defendant has received a determination on his driver'due south license suspension at an APS hearing.

3.10. Prosecution by state and federal authorities for the same bear

States are considered "separate sovereigns" from the federal government in the United states of america. This means that usa are considered largely contained regime entities that have given upward certain rights to the federal government

Jeopardy only attaches to prosecutions of the same criminal acts by thesame sovereign.⁴³ Thus a state may prosecute individuals for a crime which they stood trial for in federal court. Federal authorities may as well prosecute individuals for crimes they stood trial for in land court. The double jeopardy defence force does not apply to either of these actions.

Example: Officers of the Los Angeles Police force Department, were tried and institute non guilty of assault on Rodney Rex in Ventura Canton Superior Court in 1991.

Some of those same officers were later charged and convicted infederal court for violating Rodney King's civil rights.

The federal charges and convictions arose out of the same incident as the previous state case in Ventura Canton Superior Court. However, because the country of California and the federal government are separate sovereigns, double jeopardy did not bar the prosecution of those officers in federal court.

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If you lot or a loved i is charged with double jeopardy and you are looking to hire an attorney for representation, nosotros invite you to contact us at Shouse Law Grouping. We tin can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, nosotros have law offices located in Reno and Las Vegas. For information relating to Nevada's legal defenses, nosotros invite you to contact a Nevada criminal defense attorney at i of our local Nevada law offices.

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Source: https://www.shouselaw.com/ca/defense/legal-defenses/double-jeopardy/