What is Double Jeopardy?

In general, you have constitutional protection from being tried or punished for the same crime twice. The Fifth Amendment of the U.S. Constitution includes a clause, known as the Double Jeopardy Clause, which prohibits the government from prosecuting an individual for the same offense after the person is acquitted of the crime or convicted and sentenced. This clause also protects convicted individuals from being sentenced to multiple punishments for the same crime.  

While the Constitution prohibits double jeopardy or putting someone through more than one trial for the same offense or imposing multiple punishments for the same crime, there are technicalities and exceptions.  The clause does not bar state and federal governments from separately prosecuting an individual for the same offense when both have jurisdiction over the matter. So, in some circumstances, an individual could be tried twice for the same crime without it violating the clause against double jeopardy. North Carolina has tightened the constitutional loophole that could allow state and federal governments to both prosecute. North Carolina law limits the state’s ability to prosecute a defendant who has already been prosecuted for the same offense elsewhere. 

The key to avoiding double jeopardy is to compare the elements of the alleged offenses. If each offense requires proof of at least one element that is not contained in the other offense, the individual can be tried for both offenses and if convicted, punished for both. It would not constitute double jeopardy. However, if the crimes are not distinct and the required elements for a conviction overlap without a clear difference, the double jeopardy clause would apply, and the defendant could not be tried again.  

Double jeopardy is a defense claimed in criminal trials. But to raise this defense, the defendant must be able to establish that not only is the second alleged offense identical to one that was been previously charged and tried, but the defendant must also establish that double jeopardy attached in the prosecution of the previous offense. Double jeopardy does not attach just because a defendant is charged with a crime. The court process must have reached a certain point for double jeopardy to attach thereby barring any repeat prosecution or numerous punishments. For matters heard in district court, double jeopardy attaches once evidence is heard and/or once the first witness is sworn. In superior court cases, jeopardy attaches once the jury is sworn in. When a guilty plea is made, double jeopardy does not attach until the defendant’s plea is accepted by the judge. 

Sometimes, cases end in a mistrial. Double jeopardy does not always attach in this situation. If a mistrial is declared because of the jury’s inability to reach a decision or based on the motion of the defendant, double jeopardy typically does not attach. If prosecutorial or judicial misconduct caused the mistrial, double jeopardy usually attaches. 

Your rights are important. If you have been charged with a crime, you need an experienced defense attorney on your team, protecting your rights and fighting to ensure you receive a fair trial. To learn more about your rights, contact our office for a consult.