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  • Writer's pictureZachary Griffith

What is Double Jeopardy?

“… [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” The Fifth Amendment, U.S. Constitution

Double jeopardy may be one of the most well known protections in the Constitution. On the surface, the double jeopardy protection is simple enough, it protects you from being charged twice for the same crime. That normally means that if charges are However, this is a little too simple, and there are some circumstances where a defendant can face litigation more than once for the same actions.

For example, double jeopardy protection doesn’t apply is when someone brings a civil claim in addition to the criminal charge that has been filed. For some crimes, like assault, there is a civil counterpart, which the victim can bring, to obtain money in the form of damages. Defendants have a harder time winning civil cases, where the bar for damage awards are lower than in a criminal trial. This can lead to a situation where a defendant is found not guilty of a criminal charge only to face and potentially lose a civil case. The rational behind this is that the Fifth Amendment only protects against being “twice put in jeopardy of life or limb,” and since civil cases don't result in prison time or execution, they don't run afoul of the Fifth Amendment's double jeopardy protections.

The double jeopardy protection also doesn't apply for federal and state charges, or charges by two different states. This usually happens when the charges involve crossing state lines. The reason this isn’t double jeopardy deals with the structure of our government, where we have “two sovereigns” (two separate, semi-independent governments) that are involved, the state and the federal governments. Since these are two separate governments making separate charges, the Supreme Court declared the double jeopardy protection did not apply in United States v. Lanza. The third situation is extremely technical, and deals with situations where the same action may break multiple laws.

In all of these cases, and most cases in general, it is best to consult a lawyer about whether or not double jeopardy applies, as even little differences can change the answer. Since prosecutor’s have a lot of leeway in how and if they bring a charge, double jeopardy is rarely an issue, but it does happen. If you have legal concerns and need some advice, consider giving our office a call.

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