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Double Jeopardy Questions

Double jeopardy is an action that prevents a person from being tried twice for the same charges once convicted or acquitted. Double jeopardy only applies to criminal cases. Many people are unaware of double jeopardy and what it implies. Below are a few of the more often asked questions about double jeopardy.

Can a case be dismissed and then brought back and re-filed? Isn't this double jeopardy?

The act of re-filing a case doesn't fall under the double jeopardy clause. In order for this to be considered double jeopardy, the case would have to be dismissed based on evidence that was entered instead of a technical issue. According to the Supreme Court, double jeopardy goes into effect when a court hears evidence before a witness is sworn in or after a plea has been accepted by the court.

My son was arrested in 2008 for 2 counts of rape against his children. There was a plea entered for 3 counts of possession of child porn. He was sentenced to 3-6 and in the plea the counts of rape were dismissed. He is now close to being released and just got a warrant for sexual assault in the first degree. Isn't this double jeopardy?

This is a complicated question that doesn't have a yes or no answer. The problem in this situation is that by pleading guilty, has your son lost certain entitlements or did the prosecution rely on the plea to bring a new charge against your son. The people can bring a new charge against your son; however, he can claim double jeopardy. Once he claims double jeopardy, a hearing will take place to determine how the court will proceed. The US Supreme Court has placed specific guidelines that the judge will have to abide by when hearing any evidence.

By claiming double jeopardy, the state may be kept from proceeding with the trial, so it is imperative that your son's attorney use the double jeopardy grounds. The double jeopardy claim will have to go through litigation to determine if in fact double jeopardy is in play.

Is this double jeopardy? 10 years ago I was a Corrections Officer who had an affair with a female inmate. 4 years after the plea agreement, time served, probation and fines paid, they call me and tell me I have to go register under Megan's law for 10 years or go to jail if I refuse.

Because you were convicted of having an affair with an inmate and not for registering, this isn't considered double jeopardy. To become double jeopardy, the court would have to convict you for having the affair and then trying to convict you for the same crime at a later date. This hasn't happened in this situation. You were convicted of having an affair, not for failing to register as a sex offender, therefore you can be charged with a separate crime.

If one state terminates a child support order and another state is making me pay back child support for a child that I lost rights to, is this considered double jeopardy? The case was terminated in Massachusetts but not in MA and they want me to pay.

Double jeopardy only applies to criminal cases and means that once a person has been convicted of a crime, they cannot be convicted of the same crime twice. You won't be able to claim double jeopardy to stop a state for wanting child support money owed to them. You should hire an attorney in Massachusetts and sue the MA DOR. Your aim is to convince the judge that the termination order in MN should end the case in MA.

I am a victim of double jeopardy and want to sue the Army. I received an article 15 for use of marijuana. Nowhere under the article was stated that I was supposed to be separated but, was separated 6 months later. Also my right to speak to an attorney was taken away.

To be considered double jeopardy, you would have to be tried in the same court for the same crime twice. In your situation, you were not charged in court; rather you were given administrative punishment when you received the administrative separation and a non-judicial punishment when you received the Article 15.

For this to have been a double jeopardy situation, your command would have had to court martial you for the same offense twice. As far as the Administrative separation, the Article 15 is the basis to begin an Administrative separation. There doesn't have to be any mention of a separation in the Article 15 so you wouldn't be able to sue the Army.

Your best option at this point would be to file a DD Form 293 to upgrade the charge. You should mention the lack of counsel; however, if the Army wasn't seeking a less than honorable discharge, you wouldn't be entitled to an attorney for the Article 15 and the administrative separation.

Double jeopardy protects individuals from being tried and convicted of the same offense twice. However, what qualifies as double jeopardy may not always be clear to everyone. If you have questions about double jeopardy or need an expert assessment of whether your situation qualifies as a case of double jeopardy, you can ask an Expert who is familiar with criminal law for legal insights.

Ask a Criminal Lawyer

Ely
Ely, Counselor at Law
Category: General
Satisfied Customers: 2384
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
7286322
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Recent Double Jeopardy Questions

  • CA. Penal Code 1118.2, does it mean that you can not be charged

    CA. Penal Code 1118.2, does it mean that you can not be charged for that type of offense ever again, or just the ones you've been acquitted on ?
  • A case was just dismissed by prosecution with no court cost

    A case was just dismissed by prosecution with no court cost for the defendant. The court appointed counsel made a comment that since there was no cost charged to the defendant the prosecution could bring that charge back again but would have the same problem,
    ie main witness deceased. I thought once a case was dismissed that was it. Have any idea what counsel was talking about? Also since the case was dismissed is there anyway for defendant to get the money back spent for transcripts for the appeal?
  • Hello, I have a friend (who speaks NO English, only Spanish)

    Hello, I have a friend (who speaks NO English, only Spanish) who stopped by the South Carolina State Police on I95 on his way from Virginia to Florida. After regular verification, he was told he could go, but before he actually could go a K9 unit appeared, took both the driver and co-driver down, conducted a search of the car with NO warrant or consent from either the driver or the car's owner, then proceeded to strip search my friend, including that the cop put his "hands down my friends pants" and touched his gentials. My friend was indeed hiding a fake ID and some questionable credit cards in his pants and in the car (about 60-80 pieces of plastic in total - BUT NO WEAPONS AT ALL), which lead to his arrest, and detention. This happened last Thursday, he is still detained, and they are pressuring him to talk. He has not spoken to anyone, remaining silent and refusing to talk to them unless councel is present. Today they took him to a bail hearing, but that was continued as he had no defense attorney, and the police and State Attorney could not get their stories straight in front of the judge. They are due to continue on Monday. He was given forms to fill, all in English. He asked for a translator to understand the forms and duly fill them out, they refused to provide him with one. He called me and asked me to go to South Carolina (from Miami Florida) to translate for him. I have contacted a public defender and am waiting for a reply.
    He was told he would be accused of ONE MISDEMEANOR charge (which seems ridiculous based on the evidence they have - if it was legally acquired)
    He is due back in court on Monday, i will be driving there to be present at court, and offer my services as translator...
    Here are my questions:
    1. Does the police have the right to re-stop this vehicle after the first patrol told him he could go? Is that not double jeopardy?
    2. Does the police have the right to search the vehicle without the consent of the driver or the owner of the car (which in this instance was not even present) and without a search warrant or any probable cause (these cops were on a fishing expedition nothing more)
    3. Does the police have the right to do a strip search, on the side of the road, visible to any passer by, without the consent of the person nor a court order?
    (his pants were removed, and the officer put his hand in my friends pants, touching his genital organs, then removed his underwear, all in plain view)
    4. How long can they detain him without charging him, or providing him with a public defender?
    5. Do they have the right to keep pressuring him to talk to them without the benefit of counsel?
    6. Is the state / court obliged to provide him with a translator to understand what is going on???
    Looking forward to your opinion! :)
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