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Double jeopardy is the rule that the government cannot put you on trial twice for the same offense.
In federal criminal cases, the protection generally prevents three things:
The protection applies to the same offense, not simply the same conduct. As explained below, a single act can sometimes break more than one law, and that distinction is important to understand when it comes to double jeopardy.
Double jeopardy protections don't kick in the moment you're investigated or even charged. The law uses the word "attach" to describe the point when the protection starts. In a jury trial, jeopardy generally attaches once the jury is sworn in. In a bench trial, where a judge decides the case instead of a jury, it generally attaches once the court begins hearing evidence.
The timing matters because of what can happen before that point. If criminal charges are dismissed before a jury is sworn, the government can usually refile them. Once the trial actually begins, the protection is in place, and what the government can do next becomes much more limited.
Generally, no. An acquittal gets the strongest protection the Double Jeopardy Clause offers. Once a judge or jury finds you not guilty, the government cannot retry you for the same offense just because it believes the result was wrong. There is no appeal of an acquittal and no second chance with a different judge or jury.
Sometimes. If a conviction is overturned because of a trial error, like improper jury instructions, for example, or another procedural mistake, retrial is often permitted. The idea is that the first trial was flawed, so the government gets a chance to do it correctly.
The outcome is generally different when a conviction is reversed because the evidence was legally insufficient to support guilt. In that situation, the reviewing court has essentially said the government never proved its case, which works like an acquittal, and a retrial is generally barred.
A mistrial doesn't always trigger double jeopardy. A retrial is generally permitted after a hung jury because the first jury never reached a final verdict. Nobody was acquitted or convicted, so the case can be tried again. Retrial may also be allowed when the mistrial was justified by “manifest necessity,” such as a hung jury or another circumstance serious enough to justify ending the trial before a verdict.
If the defendant is the one who requests the mistrial, retrial is often allowed, too, since the defendant chose to stop the first trial. However, if prosecutors intentionally provoked the defendant into requesting a mistrial, for example, by deliberately introducing improper evidence to sabotage a trial that was going badly for them, a retrial can be barred.
Two charges from the same incident are not always the same offense under double jeopardy rules. Federal courts usually apply what's called the Blockburger test. The test asks whether each charge requires the government to prove something that the other one doesn't. If the answer is yes, the charges count as two separate offenses, even though they came from one act. That means a single act can break two different laws, and the government may be allowed to charge or punish you under both.
So double jeopardy doesn't mean one incident can only ever lead to one charge. It means you can't be tried twice for the exact same offense. Figuring out whether two charges are truly the same offense comes down to the specific wording of each statute, and that's an analysis an experienced attorney needs to do.
Double jeopardy questions are more complicated than they might initially seem. Whether a second prosecution is barred can depend on when jeopardy attached, why a mistrial happened, what an appeals court actually decided, or how two statutes are worded.
If you've been acquitted, had a conviction overturned, gone through a mistrial, or are facing charges you believe are unfair, don't try to sort it out on your own. Contact our federal criminal defense attorneys at Perlman Defense Federal Criminal Lawyers in Los Angeles, CA. Contact us today to schedule a free consultation.
Perlman Defense Federal Criminal Lawyers
1601 Vine St Suite 747, Los Angeles, CA 90028
(747) 373-0477
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Daniel R. Perlman, the founding attorney at Perlman Defense Federal Criminal Lawyers, leverages his extensive background as a former prosecutor to provide superior defense strategies for clients across federal courtrooms. Earning his Juris Doctor from the Catholic University of America's Columbus School of Law, he first honed his legal skills with the Maryland State’s Attorney’s Office.
This diverse experience enables him to advocate effectively, understanding prosecution tactics intimately, which he expertly counters in defense of his clients. With a profound commitment to justice, Daniel leads his team in tackling complex federal cases, from white-collar crimes to violent offenses, ensuring the highest level of defense through every phase of the criminal process.
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