Double Jeopardy

In recent years, the American public has had differing viewpoints on double jeopardy. For some criminals, it provides a way to get away with murder. In 2004, a man from Moretown, Vermont, was acquitted of the murder of his coworker, but in 2011, he called the police department in Randolph, Vermont, to confess to the crime. Unfortunately, he cannot be brought to court again for the murder, and justice may never be served.

This article discusses double jeopardy. We will take a look at where double jeopardy comes from, some examples of double jeopardy, and some exceptions to the clause.

Definition of Double Jeopardy

In legal speak, "jeopardy" refers to the risks people face during criminal prosecution. This includes prison time or fines. The definition of double jeopardy is then facing that same risk twice for the same crime. The act of the prosecution filing charges against an individual doesn't mean the person is "in jeopardy." The prosecution can withdraw charges at a later time by filing a nolle prosequi or a dismissal.

In bench trials, double jeopardy applies when the court starts to hear evidence after the first witness is sworn in. So if the witness doesn't remember key details, the prosecution cannot dismiss the case and refile it later.

Fig. 1: Courtroom drawing

Double jeopardy also applies when the court accepts a defendant's guilty plea. For example, if a defendant pleads guilty to robbery, they cannot be tried later for the crime. The courts are divided on this application of double jeopardy. Some believe jeopardy isn't attached to a guilty plea, while others believe it is.

Additionally, a retrial is usually allowed if the court declares a mistrial. We will take a look at the exceptions to the Double Jeopardy Clause a little later in the article.

Only sanctions that are considered punishment qualify under the Double Jeopardy Clause. Originally, the clause only applied to the government, but the Supreme Court has incorporated certain amendments and clauses against the states. Later, the Supreme Court expanded the Double Jeopardy Clause to civil sanctions that are intended as punishment.

States can have their own double jeopardy protections in addition to the Fifth Amendment protections. Court and legislature interpretations of the double jeopardy clause can vary across different states.

Example of Double Jeopardy

There are many examples of the Double Jeopardy Clause in criminal law history.

Fong Foo v. United States

In 1962, the Supreme Court heard Fong Foo v. United States. The court ruled that a case couldn't be retried even if a lower court judge's decisions were made in error. In Fong Foo v. United States, a lower court judge ordered the jury to acquit the defendant based on their belief that witnesses were not credible and that the US District Attorney acted improperly.

The US government appealed the court's decision, and an appellate court granted a retrial. However, the Supreme Court disagreed with their ruling. While the Supreme Court agreed that the judge made a bad decision, the jury actually acquitted the defendant, so there was a final judgment, and the trial ended. Granting a retrial would violate the Double Jeopardy Clause.

Exceptions to Double Jeopardy

The Michael Weir case is an example of an exception to the Double Jeopardy clause. A few legal issues provide for limited exceptions to the rule, particularly the separate sovereign exception, lesser charges, and civil or administrative proceedings.

Separate Sovereign Exception

In Abbate v. United States (1959), the Supreme Court ruled that a crime can be prosecuted in both federal and state court without violating the Double Jeopardy Clause. This is because state and federal governments are considered separate sovereigns. Sovereigns are political authorities. Separate prosecutions allow the state and federal governments to enforce their separate statutes and exert their law enforcement abilities.

The exception maintains that two offences have been committed if an individual commits an act that violates both federal and state law. Therefore, two "sovereigns" can prosecute.

In 2019, the Supreme Court ruled in Gamble v. United States upheld the idea of separate sovereigns but clarified that it is not an exception to the Double Jeopardy Clause but more of a corollary to the Fifth Amendment.

The Supreme Court ruled in Heath v. Alabama that the separate sovereign exception also applies when multiple states want to prosecute an individual for the same crime. For example, if an individual commits a murder in Florida, then escapes to Louisiana and commits another murder, both states can prosecute the individual. Usually, however, the federal government attains jurisdiction over crimes crossing state lines.

Lesser Charges

A prosecutor can file multiple charges against one defendant. For example, someone charged with first-degree murder might also be charged with the lesser charge of second-degree murder. This is frequently done when prosecutors want something to fall back on, so they can get a conviction if they think the jury might acquit a defendant on the more serious charge.

There are some exceptions to this, in that lesser and greater charges are seen as 'equal'. For example, a defendant may be charged with both first and second-degree murder if the defendant is then convicted of second-degree murder but later has that conviction overturned on an appeal. They cannot be retried for first-degree murder, only second-degree. This is because they are seen as the same.

Civil or Administrative Proceedings

If a defendant is acquitted in a criminal trial, they can still be tried in a civil trial based on the same facts. For example, an individual can be declared not guilty of murder but can still be ordered to pay monetary damages in a civil trial. An individual can also face administrative proceedings that can result in that individual getting their driver's license revoked or suspended.

Fig. 3: Judge's gavel

Double Jeopardy in Mistrials

Mistrials and double jeopardy can seem like they wouldn't be compatible. But defendants can be retried when the judge declares a mistrial in court. Mistrials can be declared because the jury cannot reach a verdict or the court cannot continue the trial because of extenuating circumstances.

However, a judge will not declare a mistrial because of misconduct by the prosecutors in hopes of getting a mistrial. Furthermore, a second trial will not be given if a prosecutor fails to plan for an event that is within their control, such as a witness failing to appear for the trial. If the prosecutor knew that the witness had not been served a subpoena because they couldn't be located, then they should have notified the court before the jury was sworn in.