Prosecutorial Discretion And Double Jeopardy In North Carolina

The Bill of Rights outlines some fundamental rights for criminal defendants. One clause of the Fifth Amendment forbids double jeopardy—prosecuting a person twice for the same offense. Of course, when the Constitution was adopted, most criminal law was prosecuted under state law, and that’s also true today. The double jeopardy clause in the Bill of Rights only refers to federal crimes.

So does that mean the double jeopardy rule is pretty much useless?

Far from it! American legal practices have changed considerably in the past two centuries, but protection against double jeopardy remains as an essential protection against abusive prosecution. If you are accused of a crime in New Hanover County, you can be sure that your North Carolina criminal defense lawyer will review your case against double jeopardy precedent law.

Precedent law—the way courts have interpreted the Fifth Amendment over the years—is key here, because much of our modern understanding about double jeopardy comes from how the U.S. Supreme Court has interpreted the law over the years. For instance, in the 1969 case of Benton v. Maryland, the Supreme Court extended the reach of the double jeopardy clause to deal with state laws as well as federal criminal offenses.

The Menace of Prosecutorial Discretion

Let’s look at another example. Some armed men break into a private poker game and rob the six players of their money, and then flee. The police arrest one of the alleged robbers, and the prosecutor charges him with robbing one of the poker players, a man named Knight. The evidence is weak, however, and the jury returns a not guilty verdict. A week later, the defendant is placed on trial again, this time for the crime of robbing one of the six other poker players, named Roberts. This time, a different jury finds the defendant guilty.

The defendant, a man named Bobby Ashe, protests. His lawyer claims this is a case of double jeopardy.

In the 1970 case of Ashe v. Swenson, the U.S. Supreme Court agreed. The Court said it was not permissible for a prosecutor to charge a person with a crime when that person had already been tried for essentially the same actions in the same incident. The prosecutor was forbidden to file charges against Ashe for robbing any of the other poker players.

Because decisions by the Supreme Court affect legal practices across the United States, Ashe v. Swenson has had a strong effect on how prosecutors pursue cases ever since. Prosecutors tend to charge defendants with multiple offenses all at once, hoping either that a jury will reach a guilty verdict on at least one charge or that the defendant will negotiate to plead guilty to one count to get the other charges dropped.

Look at how this plays out. Recently, a criminal suspect in Wilmington was arrested and charged with

  • Possession with intent to sell and deliver heroin
  • Possession with intent to sell and deliver heroin within 1,000 feet of a school
  • Manufacturing heroin
  • Possession with intent to sell and deliver cocaine
  • Maintaining a dwelling for drug-related purposes
  • Possession of marijuana, and
  • Possession of drug paraphernalia

Even though the material facts of each crime are substantially the same, the simultaneous prosecution on all these charges is not considered double jeopardy.

Standing up to Abusive Prosecutions

The power of a district attorney to select what charges to bring is called prosecutorial discretion, and too many prosecutors are willing to abuse their power to coerce a guilty plea.

At Speaks Law Firm, our Wilmington criminal defense lawyers aren’t afraid of prosecutors. If you hire us as your legal representation in a criminal justice matter, we will demand your legal rights be preserved. Call us today at 910-341-7570 or toll-free at 877-593-4233 to learn how we have crafted successful defense strategies against North Carolina and federal criminal charges similar to those you are facing.


R. Clarke Speaks
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Trial Lawyer and Founder of Speaks Law Firm, P.C.
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