What is Double Jeopardy and When Does It Apply in Criminal Prosecutions?

Double jeopardy only applies in criminal cases under state or federal law. The purpose of double jeopardy is simple; double jeopardy exists to prevent prosecutors from repeatedly charging and prosecuting individuals for the same criminal offense. Once a person has been found guilty or not guilty of a criminal offense, double jeopardy attaches, and the prosecutor may not again prosecute the person for that same criminal offense.

When Double Jeopardy Applies

The double jeopardy clause of the Fifth Amendment to the U.S. Constitution prohibits a prosecutor from prosecuting a person for the same crime more than once. The Fifth Amendment applies to the state under the Fourteenth Amendment. As a result, double jeopardy prevents re-prosecution for the same crime under the following circumstances:

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

However, in some situations, double jeopardy does not apply. For instance, if a trial ends in a hung jury or where a jury cannot reach a unanimous decision, the prosecutor can prosecute the person for the same crime again without double jeopardy concerns. Likewise, if the prosecutor dismisses the criminal charge and later refiles the same charges, double jeopardy does not apply.

Furthermore, if the trial ends in a mistrial, double jeopardy may not apply, depending on the circumstances. For example, suppose the defendant did not request or consent to the mistrial, but there is “manifest necessity” to terminate the trial. In that case, double jeopardy does not prevent a retrial on the same charge. Similarly, suppose the defendant consents to or requests a mistrial. In that case, there is no double jeopardy bar to mistrial, so long the prosecutor did not improperly goad the defendant into moving for a mistrial.

A person also may be subject to both criminal prosecution and civil or administrative penalties without double jeopardy coming into play. For instance, if you are arrested for DUI, the prosecutor is likely to charge and prosecute you for DUI, which can result in criminal penalties if you are convicted. However, if you are driving while intoxicated and cause an accident that injures another person, you also can face a civil personal injury case in addition to your criminal charges. Furthermore, whether you cause an accident or not, you will face an administrative suspension of your driver’s license through the MVC. Double jeopardy does not prevent you from facing criminal prosecution, a civil personal injury lawsuit, and an administrative MVC license suspension, even though the resulting penalties arise from the same DUI incident.

Similarly, a person can face prosecution in state and federal court for the same criminal actions. For instance, a police officer could be prosecuted in state court for assault and battery and in federal court for a civil rights violation, regardless of the outcome of the state court prosecution.

Determining When Criminal Offenses Are the “Same” for the Purposes of Double Jeopardy

Defining what constitutes the “same” criminal offense is not always as straightforward as it might seem. In many cases, a prosecutor may accuse a person of committing several crimes arising out of the same incident or series of actions that appear to be very similar. The question becomes whether the criminal offenses are distinct enough to constitute separate crimes for double jeopardy or if they are so substantially similar that they raise double jeopardy concerns.

Like most states, New Jersey generally follows the legal standard articulated by the U.S. Supreme Court in Blockburger v. U.S. to determine when double jeopardy prohibits the prosecution of a person for a particular time. In that decision, the Supreme Court ruled that federal courts should use the “elements tests” in deciding whether double jeopardy exists in a criminal case. Under the elements test, prosecutors can charge an individual with more than one criminal offense arising out of a single course of conduct only if each criminal offense requires separate elements of proof that the other charges do not. Regardless of the evidence that prosecutors intend to present to prove that an individual committed a crime, they must show that each criminal offense contains a distinct and exclusive element to avoid double jeopardy.

Get the Legal Advice that You Need in Your Criminal Case

The criminal defense lawyers of Rosenberg, Perry & Associates, LLC, can evaluate the allegations of criminal actions against you and develop the defense strategy most likely to be successful in your case. Legal advice and representation can be crucial to a positive outcome in your case. You can reach us by phone at (609) 216-7400 or visit us online.