The prosecution process can feel emotionally and financially overwhelming. Luckily, the robust constitution of the U.S. and the laws of the state of California guarantee certain basic rights of the accused that can provide reprieve, including a fair trial by jury unless the jury trial is waived.
That said, what prevents the state from prosecuting you over and over again for the same crime until they get a conviction? The answer is DOUBLE JEOPARDY!
What is Double Jeopardy?
Double jeopardy is an American constitutional principle in the Fifth Amendment that prevents the state from trying a person more than once for the same offense following an acquittal or conviction. The same principle also protects you from being subjected to multiple punishments for the same crime.
A defendant needs to know the basics of double jeopardy, mainly because it doesn’t apply to all situations. For instance, in California, double jeopardy doesn’t stop the D.A. from prosecuting you for a DUI, even if the DMV has already punished you by suspending your license.
When Can You Raise a Legal Defense of Double Jeopardy?
Double jeopardy isn’t an automatic defense. It’s only triggered after certain junctures in the criminal court process. At this point, the defendant is said to have been “once in jeopardy,” or that “jeopardy attaches.”
Here’s when jeopardy attaches and when the defense of double jeopardy applies:
When the trial begins: the jury is sworn in, or a witness is sworn in
You can only argue double jeopardy after the trial has begun. Naturally, jeopardy attaches when:
- The jury selection is completed
- When the jury members are sworn in
In a court trial without a jury, jeopardy attaches when the first witness is sworn in. If either of these circumstances occurred to you previously under the same charge, you can raise double jeopardy to prevent prosecution for that same charge or the same charge with an included offense.
Discharge of jury or mistrial without defendant’s consent
After the trial begins, any unwarranted discharge of the jury without your consent gives rise to the defense of double jeopardy if the case is retried.
Some legal situations require the jury to be discharged and the case to be retried. In such situations, you cannot use double jeopardy as your defense. These include:
- A juror’s incapacity, like illness
- A juror’s absence
- A hung jury (inability of the jurors to agree)
- Absence of the defendant, defense counsel, or the judge
Acquittals, convictions, retrial after appeal and reversals, and plea deals are the other instances where you can use the double jeopardy defense.
When Does Double Jeopardy Defense Not Apply?
Equally, there are situations in California criminal law where people believe double jeopardy applies but doesn’t:
- Civil proceedings arising from the same facts as the criminal proceedings
- Single trial with multiple convictions or acquittals
- Prison disciplinary proceedings
- Discharge by necessity
- Double jeopardy doesn’t attach to a criminal case until the defendant is placed on trial. It doesn’t apply in pre-trial proceedings.
Get Bail Bond Assistance Anytime, Anywhere, Any Day
When you’re arrested, your first concern should be how to get out of jail fast! While you can argue double jeopardy, you can only do it when the trial begins. In the meantime, you need to post bail quickly to get unlimited access to your certified attorney and discuss the possibility of using double jeopardy for your defense and if it applies.
Should you require assistance to post bail, we have decades of experience and provide round-the-clock bail bonds service (day and night and even on holidays) to get you out of jail quickly and discreetly.
With our ASAP bail bonds, you can get out of jail faster and discuss the possibility of double jeopardy with your attorney while you await your court date. Call Bail House anytime at (530) 823-8340 to get yourself or a loved one out of jail fast.