Jeopardy, it’s not just a game on TV!

Trying a case on the same charges for a second time in a Court of Law is called double jeopardy and unlike the television show Jeopardy, double jeopardy is forbidden in the United States. The Constitution reads in part, “nor shall any person be subject for the same offense to be put in jeopardy of life or limb.” Essentially, you can’t be punished twice for the same offense. The Fifth Amendment of the Constitution guarantees that no one will face prosecution for the same offense after acquittal or conviction. If a defendant is acquitted in his trial, that means he is found not guilty and because of the double jeopardy clause he cannot be prosecuted again for the same offense he was acquitted of in the first trial. Also, if a defendant is convicted of a crime, or found guilty, he cannot face punishment again for the same crime in a subsequent trial.

The test the Court uses to determine whether a person is in jeopardy is called the Blockburger Test. If the crime one is charged with contains the same elements as another crime then trying the case before the Court would put one in jeopardy. For example, if a person was tried and charged with assault, he could not later be tried using the same evidence for murder.  However, if new evidence was introduced for the charge of murder than he could be tried for the two separate crimes using two separate sets of evidence.

The Fifth Amendment also protects against prosecution for greater or lesser-included offenses.   But, a person can be tried on lesser and greater crimes if the person faces multiple crimes in one trial using the same evidence.  For example, in the case of United States v. Felix, the defendant had committed one crime but was charged with breaking two laws. In this case, there were violations of two separate laws, the violation for committing the crime and the violation of conspiracy to commit the same crime.  The Court ultimately held that the double jeopardy clause was not violated because two different laws were broken for which the defendant was tried only once for each law violation.

Why should you know about the protections afforded to you by the double jeopardy clause in the 5^th amendment? Double jeopardy is essential to our criminal justice system because without it, an innocent person could face prosecution for the same crime over and over again until he is eventually found guilty. In the case of Fong Foo vs. United States, the judge improperly instructed the jury to acquit the defendant. The Appeals Court found that a retrial could take place because of the judge’s improper instructions to the jury. However, the Supreme Court ruled the case could not be retried because a new trial would be a violation of the double jeopardy clause.

Double jeopardy is a procedural defense.  It is available as a defense to protect the defendant’s 5^th amendment right against double jeopardy. Initially, the defendant has the burden of proof and he must be able to show that prosecution for the crime charged is barred on double jeopardy grounds by a prior prosecution. After the defendant has made this initial showing, the burden shifts to the government to establish there were two separate crimes.

Attorney Daniel Selwa is experienced in recognizing and handling violations of the double jeopardy clause.  If you think you are in danger of facing punishment for the same crime twice, contact attorney Daniel Selwa.  Attorney Daniel Selwa will work hard to win your case and ensure that you are not wrongfully charged for the same crime twice.