Double jeopardy protects criminal defendants from being tried more than once for the same offense. It is a right that is afforded to the accused under both the Fifth Amendment of the U.S. Constitution and New York Criminal Procedure Law. Specifically, it provides protections against repeated prosecutions and ensures finality once a verdict has been rendered in a criminal case.

Understanding How Double Jeopardy Works

The principle of double jeopardy means that once a defendant has been acquitted, punished, or convicted, they cannot be prosecuted later for the same criminal offense. Even if they have been found not guilty and new evidence later emerges, a defendant cannot be tried again for that particular crime. Double jeopardy also means that a defendant cannot be sentenced twice for the same crime in separate proceedings.

However, it's important to understand when double jeopardy “attaches.” Double jeopardy is not invoked in a criminal case prior to the commencement of a trial. Until the right attaches, the government may dismiss or refile the charges — or amend the indictment. The protections of double jeopardy only apply once the jury is sworn in at a jury trial, or when the first witness is sworn in at a bench trial. At that point, a defendant is protected from being tried again, whether the result is an acquittal or conviction.

Exceptions to Double Jeopardy

Double jeopardy limits the power of the prosecution and allows a defendant to move on with their life while being protected from the financial impact and emotional toll of another trial. Although double jeopardy offers critical protections, it’s vital to be aware that there are some exceptions to the rule. These include the following:

• Dual sovereignty — The federal government is considered a separate sovereign from New York State. This means an individual can be charged for the same or similar crime arising from the same set of facts in both jurisdictions. In other words, if a defendant is acquitted of a crime under state law, they could still face prosecution by the federal government if the act also violated federal law.
• Mistrials — Double jeopardy typically does not attach in the event of a mistrial. If the defendant requests or consents to a mistrial, they can usually be tried again. However, if a prosecutor’s misconduct was the cause of the mistrial, double jeopardy may bar the case from being retried.
• Civil cases — Significantly, double jeopardy only applies to criminal matters. A defendant who has been acquitted may still face liability for their conduct in a separate proceeding brought in civil court.
• Appeals — If a defendant appeals their conviction and the case is sent back to the trial court, double jeopardy would not be violated. An appellate court can also make corrections to a sentencing error without violating double jeopardy.

Notably, under New York’s Criminal Procedure Law, the state may prosecute for two offenses based on the same criminal act if each has substantially different elements that must be proven or addresses very different types of harm. For instance, if one charge is based on drug possession and the other on drug use, each may be prosecuted separately. In addition, a defendant may be tried for assault on a person and again for homicide if the death occurred after the assault prosecution.

Contact an Experienced New York Criminal Defense Attorney

If you’re facing criminal prosecution, it’s crucial to have a dedicated attorney by your side who can safeguard your legal rights. The attorneys at D’Emilia Law offer trusted counsel and experienced advocacy for a broad scope of criminal offenses and work to secure the best possible outcome in every case. To schedule a consultation, contact us at 1-888-DEMILIA.