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Double Jeopardy as a defense


One way to get out of a criminal case is by claiming double jeopardy. Double jeopardy prevents a defendant from being tried again with the same charges. Your criminal defense lawyer should be able to analyze your case if double jeopardy can be used as a legitimate defense.

What’s the reason for this law?

As part of the Fifth Amendment, this law was formulated to protect the rights of the defendant and from being taken advantaged by the State as stated: “Subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty” It also serves to protect the integrity of final judgments, to protect the accused from the strain and burden arising from multiple trials.

The Double Jeopardy clause protects a defendant through four prohibitions

Getting prosecuted after multiple mistrials

The clause prevents the defendant from being immediately prosecuted after multiple mistrials that were caused by factors other than the defendant.

Getting prosecuted after conviction

The clause prevents the defendant from prosecution for the same crime after their conviction.

Getting prosecuted after acquittal

It also prevents the defendant from being charged with the same offense after acquittal.

Receiving multiple punishments from the same indictment

It protects the defendant from receiving multiple punishments for the same offense, however, the sentence can be increased. It also protects the defendant from getting their sentence increased if the defendant is already serving his term.

Attaching Jeopardy

Attaching jeopardy to a case means that if any of these conditions are fulfilled, it prevents the defendant from getting indicted for the same offense again, which is what double jeopardy is all about.

Jeopardy “attaches’ when:

  • The jury is empanelled/sworn;
  • For bench trials, if the first witness is sworn;
  • A plea is accepted;
  • If the prosecutor moves to dismiss the case. After that, the defendant cannot be retried with the same offense.

Exceptions to Jeopardy

  • If the original offense ended up with serious consequences.
    • For example, the defendant was tried for battery, but after some time, the victim dies. He can be tried for murder and get a harsher sentence..
  • If the judge dismisses a case, a retrial is still possible, unless the cause of the dismissal is the prosecutor’s misconduct in the court.
  • Double Sovereignty

Double Sovereignty

Due to how the government system works, a criminal can still be tried by the federal court even if he was acquitted by the state. Double jeopardy protects defendants but only for retrials brought within the original jurisdiction. This also plays a part in charges from different states, permitting separate states to indict someone for the same offense.

For more information about Double Jeopardy as a defense, contact a reliable criminal defense lawyer.


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