Double Jeopardy

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Background

Double jeopardy prohibits the government from prosecuting the same defendant for the same crime twice. It generally does not prohibit the government from bringing a civil action against a defendant, even after the defendant is acquitted of the crime.

Double jeopardy may not apply if the case results in a mistrial because either 1) the defendant waives his right to double jeopardy when they file a motion for mistrial or 2) justice requires a new hearing (hung jury, etc.).

In the United States, jeopardy attaches when the jury is sworn in by the trial judge, or in cases where there is no jury, when the first witness takes the stand.

Waiver may also occur if the defendant moves for dismissal during trial for any reason. Successfully appealing a conviction generally will not trigger double jeopardy. The prosecution may still appeal that decision to a higher court.

Acquittals, however, many not be appealed.

Blockburger Test

How does a lawyer determine whether a defendant is being tried for the same crime twice? Under the U.S.-based Blockburger test, two crimes do not trigger double jeopardy unless each crime requires proof of an additional element that the other crime does not require.

Collateral Estoppel

Collateral Estoppel is a judicial theory that prevents relitigation of facts that have already been established at trial. In some cases, the theory of collateral estoppel may be used to stop a prosecution from prosecuting a crime where one of the elements requires a proof of fact that has already been established in the defendant's favor.


Other Defenses