A Look at the "Double Jeopardy" Clause (Part One)

December 13, 2010
By Daniel A. Gross on December 13, 2010 9:50 PM | | Comments (0)

450px-Statue_of_Themis_edited.jpgAs a criminal defense attorney in Washington, DC, I am often asked if what happens on TV and the movies happens in real life. Double Jeopardy deserves a closer look.

In case you aren't familiar with what I'm referring to, I think the movie aptly titled Double Jeopardy best sums up the common misconception. In the movie, Ashley Judd's character is convicted of murdering her husband in the state of Washington. She is in prison when she learns that she was set up by her still-living husband in order to gain access to a $2,000,000 insurance policy. She is informed by a "jailhouse attorney" that the Double Jeopardy clause of the Bill of Rights prevents her from being prosecuted twice for the same crime. She is told that she can murder him in public and there isn't anything the government can do about it. After being released on parole, she follows the trail to New Orleans where she confronts her husband.

While these facts make for an okay thriller, there are some major inaccuracies. The concept of Double Jeopardy comes from the Fifth Amendment to the US Constitution which states in part:

"[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb;"

The first problem with the movie scenario is that the killing of her husband in Washington, and the later killing of him in Louisiana would probably be considered separate offenses.
While it seems simple enough on its face, the US Supreme Court has added another issue when it interpreted the text as meaning that no person can be tried twice for the same offense by the same "sovereign." The Supreme Court further decided that a sovereign is a US State or the federal government. This means that one state can prosecute a defendant, and then another state, or the federal government, can prosecute the defendant again for the same crime, so long as they have jurisdiction. The Timothy McVeigh case is a good example of this separate sovereign requirement. McVeigh was charged by the US Attorney with the Oklahoma City bombing and the associated murders. They got a guilty verdict but did not get the death penalty. The state of Oklahoma later tried and convicted McVeigh of the same crime, and he received the death penalty. The state of Oklahoma and the US Government are separate sovereigns, so the Double Jeopardy Clause does not apply. Going back to the movie example, the state of Louisiana is a separate state from Washington, so the Double Jeopardy clause does not apply.

In the next part of this post, I will discuss the second question that arises in the context of Double Jeopardy, which involves different standards of proof in civil and criminal trials.

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