The principle of double jeopardy is a familiar term for many Americans, often encountered in TV shows or movies, yet its intricacies can be challenging to understand. Although central to our justice system, this concept doesn’t apply universally. This article unpacks double jeopardy from a criminal defense attorney’s perspective. Reach out to Simmons Wagner, LLP at (949) 439-5857 for a complimentary legal consultation.

Breaking Down Double Jeopardy

Firstly, it’s essential to define double jeopardy. This term, rooted in the Fifth Amendment, signifies that a person cannot be tried twice after being acquitted of a crime, convicted twice for the same offense, or punished twice for the same crime. California law also includes the double jeopardy provision.

However, merely knowing what double jeopardy means doesn’t necessarily equip one to determine its application. Double jeopardy can be invoked only under specific circumstances, referred to as “jeopardy attaching.” Once jeopardy attaches in a criminal proceeding, the state cannot prosecute the defendant for the same offense again.

When Does Jeopardy Attach in a Case?

In a criminal trial, jeopardy is deemed to attach when:

• The jury is selected or sworn in.
• Witnesses are administered the oath.
• The jury is dismissed without the defendant’s consent.
• The defendant is acquitted.
• The case is dismissed.
• The defendant becomes a prosecution witness.
• The defendant is convicted.
• A plea deal is struck.
• Retrial following appeal and reversal.
• Misdemeanor charges are dismissed for the second time.

Instances When Double Jeopardy Doesn’t Apply

Despite the preceding, there are numerous instances where double jeopardy does not apply. This principle is applicable exclusively to criminal cases. Consequently, if a case is filed in civil court, it doesn’t preclude the same case from being pursued in criminal court subsequently.

In the context of the Bill Cosby case, one of his accusers had previously filed a civil lawsuit against him, alleging drugging and rape. This did not prevent the prosecution from later initiating criminal charges against Cosby for the alleged assault.

Double jeopardy also does not apply to prison disciplinary proceedings, parole or probation revocation hearings, or other non-criminal procedures such as administrative hearings before the Department of Motor Vehicles in DUI cases.

Additionally, double jeopardy comes into play only once a criminal trial has commenced, so it doesn’t affect pre-trial processes in criminal cases. If a criminal case jury is deadlocked (unable to reach a verdict), the prosecutor can retry the defendant on the same charges. Moreover, it does not prohibit both federal and state prosecutors from charging the same person for the same crime.

Understanding double jeopardy can be complicated. A proficient criminal defense attorney can help determine if it applies to your case. If you face criminal charges and need staunch representation, contact Simmons Wagner, LLP today at (949) 439-5857. Your initial consultation is always free.