What is double jeopardy and when does it apply?

by Mike on September 9, 2017

What is double jeopardy and when does it apply?

If you have ever watched a procedural crime show on TV you have probably heard the term “double jeopardy” mentioned at some point. But, do you know what the term actually means? Double jeopardy is a clause in the Fifth Amendment to the US Constitution which protects a person from being tried twice for the same crime. It’s important to note that this only applies to criminal proceedings and has no bearing on civil matters.

If you are subject to criminal proceedings it’s up to your DUI lawyer, or criminal attorney, to make sure that double jeopardy protection is applied correctly. Let’s take a look at this in more detail.

Why is double jeopardy necessary?

There are many reasons why it’s important to have the ethos of double jeopardy in place. These reasons include:

  • The prevention of the use of government resources and power to continually wear an individual down until they are convicted, rightly or wrongly.
  • The prevention of individuals being subjected to financial hardship as a result of numerous trials.
  • The protection of the integrity of the judicial system.

Once jeopardy has attached, and then completed, the defendant cannot be tried again for the same crime.

At what point does jeopardy attach?

If a jury trial is involved, jeopardy attaches as soon as the jury has been sworn in. If there is no jury present at the trial, the attachment of jeopardy happens once the first witness has been sworn in. Any actions which take place before either of these events has happened, such as a dismissal, are not subject to double jeopardy protection. It’s important to note that if a defendant has entered a plea agreement, jeopardy attaches as soon as the plea has been accepted by the court.

When does jeopardy terminate?

It’s vital to recognize the point at which jeopardy terminates. This is because once this happens; the government is not permitted to take any further court proceedings against the defendant, in respect of the same matter. Jeopardy terminates on several different occasions:

  • Once a verdict of acquittal has been reached by a jury.
  • Once a trial court has been dismissed; but jeopardy needs to have attached before this happens for this point to apply.
  • After a mistrial has been granted.
  • Following an appeal against conviction.

The only exception to these points is when a case is dismissed after a guilty verdict has been reached by a jury. In these circumstances, the prosecution can appeal the dismissal. If the appeal is successful, the guilty verdict can be re-instated, without the need for a further trial to take place.

Double jeopardy exists to protect the rights of the individual, when it comes to being tried for a crime. If it did not exist, it would be possible for the government to simply continue placing a person on trial, until it got the result it was seeking.


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