It’s difficult to be prosecuted for a crime. Even if you end up beating the charges, you will spend days — perhaps weeks — hearing your name dragged through the mud. If your case is covered in the news media, your reputation may be forever damaged. You will face large expenses and will not be able to work while you are preparing your case and standing trial.
And through it all, you have the ever-present fear that you might lose, meaning you could spend time behind bars and be forced to pay large fines. You could end up with a criminal conviction on your record, where it will interfere with your professional life and your personal life for many years to come.
Now, imagine you go through all that successfully, you are acquitted and return to your previous life as much as you possibly can. And then imagine that the government decides to try again and prosecute you for the same crime.
Can the government do that?
The short answer is no, the government cannot prosecute a person twice for the same crime. This is known as the protection against “double jeopardy.”
The long answer can get very long indeed, but we’ll briefly explore the topic in this blog post.
The Fifth Amendment to the U.S. Constitution provides that no one can be “twice put in jeopardy of life or limb” for the same offense. Over the centuries, court cases and various new laws have made it clear that this protection applies to both state and federal cases, and to both felony and misdemeanor charges.
The policy idea behind this protection is to protect individuals from overzealous prosecutors. State and federal prosecutors have ample resources to bring cases to trial, but defendants do not. Without double jeopardy protection, it’s easy to see how prosecutors could keep pressing charges until a defendant ran out of money.
Because of this protection for defendants, prosecutors must be thorough when they put together a case. They know they only get one shot, and so they typically bring as many charges as they think they can win.
It’s important to note that double jeopardy protection does not necessarily apply to cases that end in mistrial. There are also certain circumstances in which a retrial is possible. And it’s possible in some cases that a state government and the federal government could bring a case against the same defendant involving the same alleged crime without triggering double jeopardy.