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What is Double Jeopardy?

The right to be free from double jeopardy arises from the Fifth Amendment to the U.S. Constitution, which states that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb.” Florida’s state constitution reiterates this protection in Article 1, Section 9. In a nutshell, the prohibition against double jeopardy means that you cannot be prosecuted more than once for the same criminal offense.

Double jeopardy as a defense

Practically speaking, double jeopardy is a procedural defense to criminal prosecution. It protects you from being:

  • retried for the same crime if you were acquitted;
  • retried for the same crime if you were convicted; and
  • subject to more than one punishment for the same crime.

Double jeopardy applies in all criminal proceedings, both felony and misdemeanor. 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. As another example, if you were convicted of DUI and sentenced to probation, the double jeopardy prohibition against multiple punishments for the same crime would not keep the Department of Motor Vehicles from suspending your driver’s license in an administrative proceeding.

When is a defendant “in jeopardy?”

Double jeopardy does not come into play immediately when you are arrested. Rather, the courts have ruled that jeopardy “attaches” at a certain point in a criminal proceeding. In the following instances, jeopardy has not attached:

  • You are arrested and subsequently released for lack of evidence. Police can re-arrest you later if new evidence comes to light.
  • You are indicted and the indictment is dismissed. Again, you can be re-indicted later without violating double jeopardy.

Courts have ruled that jeopardy attaches at the following points in a criminal proceeding:

  • In a jury trial, jeopardy attaches when the jury is sworn in.
  • In a bench trial (where a judge, not a jury, hears the evidence), jeopardy attaches when the first witness is sworn in.
  • In a plea agreement, jeopardy attaches when the court accepts the plea.

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.

Consult an Orlando criminal defense attorney

If you have been arrested or are facing criminal charges, you need a skilled and determined criminal defense attorney to protect your rights.   The knowledgeable criminal defense lawyers of The Baez Law Firm have extensive experience representing clients charged with all types of crimes in Orlando, Miami, Tampa, and throughout Florida. Contact The Baez Law Firm for a consultation today.

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