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Double Jeopardy
(AKA Former Jeopardy)

The term double jeopardy simply means to be in danger of criminal prosecution twice. The term is a bit of a misnomer because it implies that danger of prosecution is permissible if it occurs more than twice, which is theoretically possible. For this reason, the term double jeopardy is more accurately referred to as former jeopardy in many legal treatises on the subject.

Double Jeopardy Applied: In general, a defendant is subject to only one prosecution for a criminal offense. In other words, a criminal case is over whether or not the defendant is found guilty or not guilty after being subjected to prosecution and a prosecutor may not thereafter bring new criminal charges based on the same conduct that lead to the defendant's prosecution in the first place. There are lots of exceptions the double jeopardy rule. 

Jeopardy Attachment Required: As stated, when the danger of criminal prosecution has commenced, the defendant may not subsequently be placed in that same danger. But at what point is the defendant placed in danger of criminal prosecution in the first place? The answer is "when jeopardy attaches." This answer begs the question: "when does jeopardy attach?" The answer depends on whether the defendant is prosecuted in a jury trial (guilty decided by jurors) or in a court trial (guilt decided by a judge):

  • Jury Trial: Jeopardy attaches when the jury is selected and sworn

  • Court trial: Jeopardy attaches when the trial is entered upon, which usually is when the first witness is sworn

Note: In general, trial must commence before jeopardy attaches. This means that jeopardy has not attached simply because the defendant is criminally charged or indicted. In fact, even if the defendant is prosecuted through preliminary hearing and subsequent pretrial hearings, he is not considered to have been place in jeopardy for purposes for double jeopardy law. For this reason a prosecutor may dismiss charges before jeopardy attaches and subsequently refile those same criminal charges against a defendant (with some limitations).

Exception: In some situations the defendant may be prosecuted for the same criminal act or omission even after jeopardy has attached. This happens when the defendant consents to a subsequent prosecution, either expressly or impliedly, by requesting that the judge declare a mistrial after the trial has commenced. A mistrial is a request to declare the trial over despite the fact that the jury has not been given a chance to decide the issue of the defendant's guilt. This happens when a serious error in the trial occurs which was not caused by the defendant but nevertheless prejudices the defendant. It also occurs when a trail judge, prosecutor, or defense attorney dies during trial.


For example, if the defendant's attorney dies during the trial, the defendant, or the court, may declare a mistrial, and the prosecutor is not thereafter  barred by the double jeopardy rule from commencing a new trial against the defendant based on the same criminal allegations.

Manifest Necessity: Sometimes the court may declare a mistrial in the middle of the defendant's trial without barring a new trial against the defendant based on the same allegations. This happens under conditions that necessitate a mistrial, also called manifest necessity. Examples of manifest necessity include: death or illness of jurors that result in insufficient number of jurors required to render a decision, death of the defendant's trial lawyer, natural or man-made disaster that intereres with the trial, and more. 


Note: A mistrial request by a prosecutor is usually a bar to subsequent prosecution unless the defendant provoked the prosecutor's mistrial request. By the same theory, if the prosecutor provokes the defendant to request a mistrial, the double jeopardy rule applies to bar subsequent prosecution. 

Continued Jeopardy: Sometimes a trial ends but the prosecutor is nevertheless entitled to bring criminal charges against the defendant based on the same act or omission that lead to criminal charges in the first place. This happens in several situations, such as when the defendant was convicted in a trial but is granted a new trial after an appeal, or where a jury cannot decide the defendant's fate (mistrial based on a hung jury). In these situations, the court does not view a subsequent trial as a new jeopardy to the defendant, but rather, a continuation of the jeopardy that began in the first trial.

Juvenile Cases: Double Jeopardy applies to minors in juvenile delinquency cases to bar prosecution against the same defendant for the same criminal allegations in the superior court.

Lesser Included Offenses: Double jeopardy applies to all crimes that are considered lesser included offenses to the crime charged. For example, if the defendant is acquitted (found not guilty) of the crime of carjacking, the double jeopardy rule applies to bar prosecution of the crime of theft of vehicle, because theft of vehicle is a lesser included offense to the crime of carjacking.    

Miscellaneous DJ Issues: Double jeopardy does not apply to bar prosecution for both a criminal offense and an enhancement to that same criminal offense. For example, a defendant may be simultaneously prosecuted and punished for committing the crime of robbery and for the enhanced penalty of using a firearm during the commission of the robbery. Also, double jeopardy does not apply to probation revocation hearings or civil cases related to criminal conduct.

Also, double jeopardy applies to juvenile delinquency cases and crimes that are considered lesser included offenses to the substantive criminal charge. For example, 

Collateral DJ Issues: A corollary to the double jeopardy rule is the rule that the prosecutor must charge all criminal offenses arises out of the same criminal conduct. For example: If the defendant is charged with robbing two people at a convenient store, the prosecutor must prosecute both robberies at the same time. The prosecutor may not divide the robbery charges and bring separate prosecutions for each robbery (one robbery for each victim).


To learn more about the defense of double jeopardy (former jeopardy), contact our criminal defense lawyers today for a free consultation.Our criminal defense lawyers have handled hundreds of misdemeanor and felony cases in San Bernardino County courts and we are available seven days a week to assist you. Call Today!


Related Law

  • The Fifth Amendment to the United States Constitution reads, in part: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." 

  • California Law: "persons may not twice be put in jeopardy for the same offense Cal. Const. Art. I Section 15

  • A single dismissal of a misdemeanor crime for failure to prosecute or in the furtherance of justice bars subsequent prosecution for the same offense stemming from the same act or omission.

  • Two dismissals of a felony in a non-capital case bars subsequent prosecution for the same offense stemming from the same act or omission.

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