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Double Jeopardy


Double jeopardy: we’ve all heard about the Constitutional Amendment protecting people from enduring two criminal trials for the same offense, but many people likely do not understand the caveats to this important protection. The fact of the matter is, two separate trials could occur based on the same act under very specific circumstances. For example, the same act could be charged in both state and federal courts. Surprisingly, even two states, if they both have jurisdiction, could hold separate trials for the same act. And there’s a third way in which two trials could address the same offense: if criminal and civil charges are filed.

 When is Jeopardy Attached? 

In a trial, jeopardy might be attached at any of several points, depending on the type of trial:

  • Jury trial: Once a jury is empaneled and sworn in;
  • District court: After a witness is sworn in or evidence is introduced;
  • Bench Trial: When initial evidence is heard;
  • With a guilty plea: When the plea is accepted by a judge.

The Same Act

Sometimes there may be a desire  to retry someone after a not guilty verdict is dispensed.  But prosecutors need to look at whether each offense to be charged has an element that is new and different. When there is no new unique element, it would be considered double jeopardy to charge criminally again.

Two Trials for the Same Act 

In the early days the Double Jeopardy Clause applied only to federal cases, but it has since been integrated into state laws, as well, meaning two criminal trials and related penalties cannot be held successively for the same act or omission. To the contrary, the Supreme Court has held that both civil and criminal sanctions may be handed down for the same offense following individual civil and criminal trials.  An individual might be tried criminally for a particular offense, only to face civil charges in a separate trial at a later date based on the same actions.  A infamous situation illustrating this flexibility is encompassed by the criminal murder trial of O.J. Simpson, where the goal was incarceration or worse (and he was found not guilty), followed by the civil trial for wrongful death seeking monetary damages after the initial criminal trial (where he was found guilty).  It’s true that Simpson managed to avoid prison time in the criminal trial, but he was ordered to pay over $33 million in damages after being found responsible for the deaths of Ronald Goldman and Nicole Brown Simpson (his ex-wife) in the civil trial. The juries in both trials were considering the same act, but with different end-goals, and they had very different outcomes. Nevertheless, even after being found guilty in the civil trial, Simpson can never be retried criminally for the same offense under double jeopardy protections. In Simpson’s case, the defendant had double jeopardy protections as soon as the jury was sworn in because he had a jury trial. Any legal issues Simpson encountered following the civil trial were completely unrelated to the slayings of his ex-wife and Goldman.

An Aggressive Defense

Regardless of the charges, the experienced and committed Miami criminal defense attorneys at The Law Office of Julia Kefalinos are determined to fight vigorously for the best possible outcomes for you. To discuss, schedule a confidential consultation in our office today.



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