The Ban Against Double Jeopardy in Criminal Cases

The ban against double jeopardy is guaranteed to every American by the Fifth Amendment to the U.S. Constitution, which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” In other words, no one can be prosecuted for the same crime twice. Or, to be more specific, double jeopardy protects defendants against:

  • being prosecuted again for the same offense following an acquittal;
  • being prosecuted again for the same offense following a conviction; and
  • being punished more than once for the same offense.

Even if the prosecution discovers more evidence after a defendant has been acquitted, he or she cannot use that evidence to try the defendant again for the same crime.

Double jeopardy only applies to criminal cases, so defendants who have been charged with a crime and tried can also be sued in civil court for damages stemming from the crime. Even if the defendant is acquitted of criminal charges, he or she can still be sued for civil damages.

If you have been charged with a crime but have never gone to trial, you can still be charged again for the same crime. This is because jeopardy does not “attach” until a jury has been sworn or, in cases that are heard before a judge only, after the first witness testifies.

If you have been charged with a crime in state court, you can also be tried for the same crime in federal court, depending on if federal jurisdiction applies. Likewise, a defendant who is charged with multiple offenses can be prosecuted multiple times.

In addition, if you have been tried for a crime and the result of the trial was a hung jury — which means that the jury could not agree and thus no verdict was returned — the prosecution can try you again for the same crime. If a judge declares a mistrial, you may also be prosecuted again for the same crime if the prosecution can demonstrate a critical need to retry the case.

The Cogdell Law Firm is a full service criminal litigation and appellate law firm. We provide client-focused representation at all stages of the process, whether our clients are seeking to avoid charges, have been charged, or are seeking reversal of a conviction on appeal. When results matter most, contact Dan Cogdell at (713) 426-2244 or dan@cogdell-law.com.

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