Double Jeopardy

5th Ammendment

Today, we’ll be talking about the Fifth Amendment to the United States Constitution’s double jeopardy clause. The double jeopardy clause of the Fifth Amendment to the United States Constitution prohibits the government from prosecuting individuals more than once for a single offense, and from imposing more than one punishment for a single offense specifically provides that no person shall be subject for the same offense to be twice put in jeopardy of life and limb.

The idea of Jeopardy is the risk of having something taken away or the risk of losing something. So in this case, although America has not maimed people as a consequence for criminal conduct, America has always had the death penalty. So life and limb means the potential to lose your freedom or your life.

The concept of double jeopardy is one of the oldest in western civilization. Back in 355 BC, the Athenian statesman democracies, said that the law forbids the same man to be tried twice on the same issue. Now, American colonists remember this narrow definition. And when they met during the Constitutional Convention, James Madison helped craft the wider definition that we in the United States use today. So double jeopardy applies to situations where charge is dismissed with prejudice or an acquittal after a trial occurs. It does not apply to dismissals without prejudice, which is the vast majority of dismissals that we see in the criminal justice system. Double Jeopardy does not protect someone from a civil lawsuit for the same acts. Double Jeopardy does not protect somebody from being prosecuted by more than one jurisdiction. In the United States, we have dual sovereignty. So there is the United States government that can prosecute you for the same conduct that your state government can prosecute you for.

For example, in 1991 in Los Angeles, several police officers were involved in the vicious beating of the motorist Rodney King. Now, because of that case’s tremendous publicity – the court changed venue to Ventura County in Southern California. The insurer jury acquitted the officers on all but one of the charges. And on that one, it was a home verdict. Now that sparked the riots of 1992 in LA. Months later, a federal grand jury indicted the officers for the same beating under a law punishing anyone who is acting under government authority and violates a person’s federal constitutional rights. A federal jury ultimately convicted two of the four officers under federal law and the prosecutors invoked that the law will rule in many excessive force use cases and they have continued to use that.

Another example is the case of Michael Vick, former NFL quarterback. Now federal authorities had charged him for running an interstate dogfighting business because it involved dog executions, gambling and a variety of other illegal illegalities. The federal court sentenced him to 23 months in prison and the state of Virginia separately prosecuted Vic for the dogfighting ring. And after his federal conviction was concluded, he remained in custody and pled guilty to a state charge. Now, the state charge sentence was essentially folded into, or ran concurrent, with his federal sentence. But he was still prosecuted and convicted.

For our clients in these situations, what we frequently do is secure global resolutions to charges that involve potentially state and federal allegations. Likewise, when an offender has a series of offenses across various jurisdictions, we again try to reach a global resolution to take care of all of those so we don’t end up with a variety of consecutive sentences back to back to back to back to back. Recognizing the double jeopardy issue is often very difficult and it requires a thorough investigation. It also requires a very open and honest relationship between the attorney and the accused. Trial lawyers will make sure to litigate this defense in particular through motions and even trial practice by ensuring that the particular conduct being litigated in the trial is the conduct that can potentially preclude future charges regardless of the jurisdiction.

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