How Changes in Double Jeopardy Concepts Have Placed Defendants’ Rights in Peril

The Fifth Amendment to the U. S. Constitution famously gives criminal defendants the right not to incriminate themselves, but it also has other provisions that relate to criminal law. The clause that states “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb” forbids the federal government from double jeopardy prosecutions. The Fourteenth Amendment extends the same prohibition to prosecution under state laws.

This should be a comfort to criminal defendants, right? If you were arrested and prosecuted for a criminal offense—let’s say auto theft—but found not guilty, then the prosecutor could never again charge your for that exact same crime in the hope that a different jury might convict you. Sure, you could be arrested for auto theft again, but it would have to be a different car on a different occasion.

Unfortunately, in recent years the way prosecutors use their power has changed—and, as a result, the double jeopardy clause provides much less protection than it used to.

Double jeopardy protection: why it is essential

Our notions of justice and the rule of law have always given great importance to the prohibition of double jeopardy prosecutions. Legal scholars have found that ancient Greek and Roman civilizations forbade trying someone twice for the same issue, and the ban on double jeopardy was one of the cornerstones of British common law.

Because the power of the government is so much greater than the influence of any citizen, restricting the government’s ability to try cases over and over is fundamental to guaranteeing that innocent people are not convicted, and to protecting the individual from having to fend off repeated prosecutions.

When we look at it closely, the ban on double jeopardy offers two distinct types of protection for the criminal defendant:

  • The prosecution can’t appeal an acquittal. If a defendant is tried and convicted, his attorney can appeal the verdict to a higher court if there were any irregularities in the proceedings. If the defendant is acquitted, that verdict cannot be appealed, even if new evidence comes to light that seems to confirm the defendant’s guilt.
  • A jurisdiction can prosecute a person only once for a single criminal event. If a person is accused of breaking into a house and stealing a television, a laptop computer, and a quantity of cash, the prosecutor cannot break this into three separate trials, in the hopes of getting a conviction for stealing the laptop even if the defendant is acquitted of the TV theft.

It’s this second rule that has the greater importance to us today. If one criminal case has the same set of material facts as another case, they are generally considered the same case and cannot be prosecuted separately.

But the practice of criminal law changed since the 1970s

After racial riots and student protests in the late 1960s, politicians found that claiming to be “tough on crime” and in favor of “law and order” was a winning strategy for elections. Both the U.S. Congress and state legislatures acted to expand the number of possible crimes and toughen punishments. We want to highlight two results of these changes:

  • It became easier for a single act to be prosecuted as a crime under both state law and federal law. This is important, because the prohibition of double jeopardy only applies within one jurisdiction. It is now perfectly legal for someone to be prosecuted in federal court for violating federal drug trafficking laws and in North Carolina courts for violating state drug laws, even when the same incident is the foundation for both prosecutions.
  • The explosion in the number of criminal laws shifted power to the prosecution. If a single act could count as, say, seven different crimes, then the local district attorney would charge the defendant with all seven offenses as part of a single prosecution. The prosecutor could always offer to drop some charges in exchange for a guilty plea on other charges.

Your rights in criminal court

The lesson here is that more than ever, a criminal defendant needs the assistance of an experienced North Carolina defense attorney when facing charges in New Hanover County. The balance of power has shifted to favor prosecutors, and you need skilled legal representation able to anticipate the prosecution’s strategies to get the most favorable outcome in your case.

The criminal defense lawyers at Speaks Law Firm have those skills. Connect with us today at 910-341-7570 or toll-free at 877-593-4233 if you need legal representation for your criminal case in New Hanover County, Robeson County, Pender County, Brunswick County, or Columbus County. We promise that we treat each client as our most important client.


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