By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Double jeopardy comes from the 5th Amendment to the U.S. Constitution which holds in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”
Double jeopardy can be an extremely complex topic. The easiest way to think about it is once you are acquitted of a charge, you can’t be prosecuted for the same charge again. The prosecutors who represent the government are like anyone else before the Judge. They get their day in court — but they don’t get it again and again and again until they win.
What makes the issue so confusing at times are the different concepts behind what constitutes an acquittal for example. The prosecution may dismiss a case but if they do so before jeopardy is said to “attach” in a particular case (typically when a jury is sworn — or in a trial before a judge — when the trial begins), the prosecution can simply refile the case if they are within their limitations period.
Also many factual circumstances could lend themselves to prosecutions of different offenses. Crimes have statutory elements which must be proven by the prosecution. The elements for one crime might be completely different from another crime which arose from the same situation. Merely because someone was prosecuted and acquitted of one charge doesn’t mean the other charge can’t then be pursued by the state. Whether subsequent prosecution is precluded by double jeopardy might depend on the over-lapping nature of the elements of given charges.
The vast majority of times double jeopardy issues are simple. If someone is found not guilty for driving while intoxicated, marijuana possession or assault then virtually always the case is closed. On occasion double jeopardy issues can arise, though. When they do it’s best to speak with a lawyer about what the State may or may no do to pursue a particular case.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice on any issue you should contact an attorney directly. Contacting the attorney through this blog does not create an attorney-client relationship. Communications sent through this blog are not considered privileged or confidential.