What Is Double Jeopardy?

Continuing our examination of the Fifth Amendment to the United States Constitution, we now turn our attention to Double Jeopardy. The second main clause of the Fifth Amendment to the United States Constitution states "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . .' Double Jeopardy, besides being a movie starring Ashley Judd and Tommy Lee Jones, is very simply a procedural defense to prosecution. If a person argues the doctrine of double jeopardy that person is telling the court that he or she has already bent tried and acquitted of the case or tried and convicted of the case. It is a doctrine that prevents an individual form being tried on the same charge after there has been a conviction or acquittal.

The obvious purpose of this clause to limit government oppression and harassment by repeatedly prosecuting someone until they obtain a guilty verdict. It is also is designed to prevent the government from punishing a person multiple times for the offense. Thus, it is not unreasonable to say that the State gets one chance, one opportunity to prove its case once a trial begins.

This rule comes under fire from prosecution and other advocates because some consider this to be a simple procedural exception to justice. The case that they cite to in their criticism is Fong Foo v. United States. Again, it is usually the State making this argument, but in this case, the trial court ordered the jury to acquit the defendants of the conspiracy charge based on prosecutorial misconduct and lack of credibility of the witnesses. The trial court only heard half of the evidence by that time. The Supreme Court stated that the trial court erred, HOWEVER, the defendant's could not be tried again because double jeopardy attached. Thus, those who try to squirm around this rule believe that this rule prevents criminals from being retried when new evidence of his or her guilt is discovered.

Another interesting point about the Double Jeopardy clause is that the Supreme Court of the United States has incorporated this clause to the states by the Fourteenth Amendment (unlike the grand jury clause).

Finally, jeopardy attaches when the jury panel has been sworn in. Thus, once voir dire (jury selection) is over and the twelve (or six) member jury panel has been selected and sworn in, the State better be ready to proceed to trial because jeopardy has attached.

If you have been charged with a crime, contact a Plano criminal defense attorney.