When is a defendant in jeopardy

Double jeopardy will apply if the defendant has been acquitted on the charge or convicted, then the government cannot retry the defendant on the same crime or a lesser crime that was merged within the crime.

For example, if the defendant was acquitted on robbery charges, the prosecution cannot later try the defendant for larceny regarding the same incident since larceny is a lesser offense of robbery. If you believe that you are being prosecuted twice for the same crime, you should speak to a criminal defense lawyer immediately to learn more about your rights, your defenses, and the complicated legal system. Ki Akhbari. He later went on to get a J. While working as a legal writer with LegalMatch, Ki covered a wide range of topics like breach of contract, criminal, family disputes, and immigration law.

Jose Rivera. Law Library Disclaimer. Can't find your category? Click here. Drug Crimes. Speeding and Moving Violations. White Collar Crime. Please provide a valid Zip Code or City and choose a category. Please choose a category from the list. However, it does not apply to civil or administrative proceedings. Consequently, whether or not you are acquitted of a particular crime, you could still be sued in civil court for damages resulting from that crime.

For example, if you were charged with assault and battery stemming from a fight, and were acquitted of those charges, the person with whom you fought could still sue in civil court for any injuries sustained during the fight. Double jeopardy does not come into play immediately when you are arrested. In the following instances, jeopardy has not attached:. Once jeopardy has attached, generally you cannot be retried for the same crime.

Even if the prosecution finds new evidence after you are acquitted or accept a plea, you cannot be prosecuted again on the same charge. Double jeopardy does not always apply when there is a mistrial.

If the judge declares a mistrial because of jury or defense misconduct, or because the jury is unable to reach a verdict, typically the defendant will be retried. A retrial is less likely, however, if prosecutorial misconduct led to a mistrial.

If you have been arrested or are facing criminal charges, you need a skilled and determined Orlando criminal lawyer to protect your rights. But just because a case ends doesn't mean that retrial is barred. Again, a hung jury often allows for a retrial. Similarly, if the defense consents to a mistrial, perhaps because of juror misconduct, the prosecution can usually re-prosecute the defendant.

On the other hand, if a judge declares a mistrial over the defense's objection, the prosecution typically must show a critical need in order to retry the defendant.

But that isn't as tough as it might seem. For example, retrial might well be allowed when, despite the defense's protest, a judge declares a mistrial because a juror stopped coming to court. United States v. Wells , F. The double jeopardy guarantee protects only against double prosecution or double punishment by the same "sovereign," or government. Even if the exact same conduct is at issue, a state prosecuting someone doesn't prevent the federal government from doing the same, and vice versa.

Learn more about state vs. The federal prosecution of the officers who beat Rodney King illustrates the "separate sovereigns" principle. The State of California prosecuted the videotaped officers but failed to obtain any convictions. The Los Angeles Riots ensued. The federal government then prosecuted the officers for the same beating, alleging a violation of King's civil rights. The federal convictions were valid because separate sovereigns had tried the officers. In the case Gamble v.

United States , the U. Supreme Court reaffirmed the separate sovereigns doctrine. The defendant in that case had pleaded guilty in state court to the crime of possessing a firearm as a felon.

The federal government also charged the man for the incident in question, but under an equivalent federal law. The Supreme Court noted that sovereigns have their own offenses, meaning that in this kind of case the defendant really isn't being prosecuted twice for the same crime.

Accordingly, it decided that the second prosecution didn't violate the double jeopardy principle. Prosecutors often file multiple charges against defendants for the same set of facts. For example, a prosecutor might charge someone with both assault and assault with a firearm for pointing a weapon at someone else.

In that situation, if a jury were to convict the defendant of both offenses, double jeopardy might well block the judge from handing down a separate sentence for each crime. Double jeopardy, like so many criminal law concepts, is intricate.

And the legal rules throughout the country, while often similar, aren't always exactly the same. States, for instance, can have their own double jeopardy protections that supplement the Fifth Amendment. Also, some state legislatures and courts might take different approaches than others. If you want to know how or whether the double jeopardy principle applies to a situation you face, make sure to consult an experienced criminal defense attorney.

The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. The attorney listings on this site are paid attorney advertising.

In some states, the information on this website may be considered a lawyer referral service. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice.

Meet the Editors. The Prohibition Against Double Jeopardy. At its essence, the Double Jeopardy Clause stops the government from prosecuting or punishing someone multiple times for the same incident.