Procedural defense

Double jeopardy is a procedural defense. The defense protects defendants from being tried for the same crime twice. Under common law, defendants would plead autrefois acquit or autrefois convict, which translated to the defendant has already been acquitted of convicted of the crime he or she is being charged with by the government. When the defendant raises the defense of double jeopardy, evidence is presented to the court to support the plea. The court analyzes the evidence and determines whether it substantiates the defendant’s claim.

If there is a determination that double jeopardy exists, then the trial will be prevented from proceeding. In the United States, protection from double jeopardy is a constitutional right. The right arises under the Fifth Amendment of the United States Constitution. The double jeopardy clause of the Fifth Amendment provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb. ” The aim of the clause is to prevent governmental abuse of repeated prosecution as a method of harassment.

Although the right to double jeopardy applied initially only to the federal government, the United States Supreme Court held that through the process of incorporation the Fourteenth Amendment extended the Fifth Amendment clause to the states (Benton v. Maryland, 39 U. S. 784 (1969)). The Supreme Court has confirmed that the three essential protections afforded defendants by the double jeopardy clause apply to the states. Defendants cannot be tried for the same offense after there has been an acquittal. After a conviction, defendants cannot be retried unless such conviction was reversed, vacated or nullified.

Lastly, the double jeopardy principle prevented individuals from being punished multiple times for the same crime. Notwithstanding the foregoing, there are circumstances when courts are able to reach pass the double jeopardy defense and charge a defendant with the same crime. Such circumstances are considered exceptions to the double jeopardy rule. These exceptions include non-final judgments, fraudulent trials, different legal proceedings and separate sovereigns. II. Exceptions to the Protections of Double Jeopardy A. Non-Final Judgment

Double jeopardy is only applicable to charges against a defendant that are subject to a final judgment (Fong Foo v. United States, 369 U. S. 141 (1962)). There are a number of circumstances where double jeopardy does not apply although appearances seem to indicate otherwise. For example, a second trial after the first ended in a mistrial. A trial after a mistrial does not run contrary to the double jeopardy clause because a mistrial is a premature end to a trial without a determination of guilt or innocence. Another example is where a conviction is reversed, vacated or set aside after the granting of a motion for new trial.

In these instances the retrial does not violate double jeopardy because the original judgment is deemed invalid. Evidence and testimony obtained from the previous trials may be used in later retrials and may even be used to impeach contradicting testimony given in subequent trials and proceedings. B. Fraudulent Trials If it is proven that the original trial was fraudulent or a scheme, the defendant cannot escape a new trial by arguing double jeopardy. In Harry Aleman v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al. , 138 F.

3d 302 (7th Cir. 1998), the court held that the defendant, who had bribed the trial judge and was acquitted, could be tried again. The defendant’s bribe nullified the double jeopardy protection. C. Different Legal Proceedings The Fifth Amendment protection does not extend to defendants charged in a criminal nature and then sued in civil court on the same underlying facts. The Supreme Court held that double jeopardy only precludes subsequent criminal proceedings. Double jeopardy does not prevent subsequent civil and administrative proceedings (Benton v. Maryland).

This is because criminal, civil and administrative proceedings have different objectives. Under the different legal proceedings exception, a defendant can be acquitted of murder, but held liable under a wrongful death claim in civil court. O. J. Simpson is most likely the most famous example of such a situation. Simpson was acquitted of double homicide in a California criminal trial, but was later found to be liable for the deaths of his ex-wife and her boyfriend in civil court. D. Separate Sovereigns In the United States, double jeopardy is only applicable to prosecutions for the same criminal offense by the same sovereign government.

The American judicial system views each state as a separate sovereign entity as well as the federal government. Hence, the separate sovereigns exception allows two states to prosecute a defendant for the same crime or a state and the federal government to prosecute a defendant for the same crime (Heath v. Alabama, 474 U. S. 82 1985)). 1. Prosecution of the Same Crime by Two States. As stated previously, the separate sovereigns exception to the double jeopardy rule permits two states to prosecute for the same crime. The classic example is the person who stands in one state and shoots a man over the border in another state.

Both states can prosecute the person for murder. The Supreme Court affirmed in Heath v. Alabama that the double jeopardy defense did not prevent a state from prosecuting a defendant after another state already prosecuted him or her for the same crime. “To deny a State its power to enforce it criminal laws because another State has won the race to the courthouse ‘would be shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines’” (Heath v. Alabama (quoting Battkus v. Illinois, 359 U. S. 121, 137 (1959)).

Similarly, defendants cannot use double jeopardy as a defense when being prosecuted for separate offenses arising from the same criminal act. The Supreme Court held in United States v. Felix, 503 U. S. 378 (1992), that a charge for an offense and a charge for conspiracy to commit an offense are not the same for purposes of double jeopardy. The Court explained in United States v. Ursery, 518 U. S. 267 (1996), that “Congress has authorized the Government to bring parallel criminal actions and in rem civil forfeiture proceedings based upon the same underlying event.

” Thus, the protections of the double jeopardy clause are not afforded to the defendant. 2. Prosecutions of the Same Crime by a State and the Federal Government. The judicial system in the United States permits a state and the federal government to prosecute a defendant for the same criminal act under the separate sovereigns exception. There are two common instances in which this occurs. The first is that the act committed is a crime under both state and federal laws. For example, robbery of a bank is a crime under both state and federal laws. Another example is where a defendant has murdered someone.

If the defendant kidnaps someone and then travels across state lines and kills that person. Then the defendant can be charged for murder by the state in which he or she killed their victim and charged for murder during a kidnapping by the federal government. It should be noted that the kidnapping and murder became a federal crime when the defendant crossed state lines. Search Terms Used Double Jeopardy Double jeopardy and state prosecutions Double jeopardy and state and federal prosecutions When is double jeopardy not violated? Double Jeopardy cases