What is Double Jeopardy? Can I Be Retried Again?

Criminal-Case-300x200I recently met with a client who had a jury trial for a Domestic Battery charge. After several days of a trial and deliberations, the jury could not agree on a verdict and the judge declared a mistrial. Shortly after the mistrial was declared, the prosecution decided that they would retry the client and he came to my office looking to hire me for the second trial. The client had several questions about what happens at a re-trial and weather Double Jeopardy applied to his case. I answered his questions and realized that people misunderstand what Double Jeopardy means.

In order for you to be convicted of a crime by a jury, all 12 members of the jury must agree that you are guilty. At the same time, in order to be found not guilty of a crime by a jury, all 12 members of the jury must agree that you are not guilty. Their verdict must be unanimous. If a jury is unable to come up with a unanimous verdict, the Court will declare a mistrial. A mistrial does not necessarily mean that the case is over. When a mistrial happens, the prosecution will decide whether they want to try you once again for the same crime. The decision about whether the state will try you again for the same crime is a decision that rests with the prosecution. From experience, prosecutors will take a variety of factors into consideration when deciding whether to have another trial. A major factor for prosecutors is how close did they come to winning the first jury trial? In other words, if a vast majority of the jurors were in favor of finding you guilty, it is much more likely that the state will try you again. If the vast majority of the jurors were in favor of finding you not guilty, it is much more likely that the state will drop the case and not seek another trial.

The legal grounds for you not to be subjected to another trial can be found in the Fifth Amendment to the United States Constitution and Section 10 of the Illinois Constitution.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that “nor shall any person be subject to the same offense to be twice put in Jeopardy of life or limb. Generally, this prohibition applies in four general situations:

-Retrial After Not Guilty Verdict;
-Retrial After Guilty Verdict;
-Retrial After a Mistrial;
-Retrial in Order to Obtain Multiple Punishments

Double Jeopardy for a jury trial attaches as soon as a jury is impaneled and sworn in. Double Jeopardy for a bench trial attaches once the Court begins to hear evidence, after the first witness is sworn in, or as soon as a Court accepts a defendant’s guilty plea.

Even though the Fifth Amendment initially only apply to the federal government, the United States Supreme Court has held that the Double Jeopardy Clause applies to the states through the 14th Amendment to the Constitution. Nonetheless, Section 10 of the Illinois Constitution codifies the Double Jeopardy clause in the Illinois Constitution. Section 10 of the Illinois Constitution states that “no person shall be twice put in Jeopardy for the same offense.” The main reason for Illinois including this language in the Illinois Constitution is to keep the prosecution from retrying a criminal defendant who was found not guilty even when evidence was uncovered later that proves that the defendant was guilty.

As with many other areas of the criminal law, exceptions apply depending on the facts and circumstances of a particular case. For instance, what happens if a defendant is facing criminal charges in State Court and Federal Court? If a defendant is found not guilty in State Court does that bar a trial in Federal Court for the same charges? What happens if the mistrial is granted due to the mistake by the prosecution? What happens if a verdict is overturned on appeal? Can a retrial happen?

If you have any questions regarding whether the Double Jeopardy Clause applies to your case or whether you can be retried for the same offense, you need to talk to an experienced criminal defense lawyer who understands the law when it comes to the Double Jeopardy Clause and what happens after a jury verdict.

James Dimeas is a nationally-recognized, award-winning, criminal defense lawyer. Recently, the American Society of Legal Advocates named James Dimeas a “Top 100 Criminal Defense Lawyer in the State of Illinois for the Year 2018.” James Dimeas has been named a “Best Criminal Defense Lawyer in Chicago” by Expertise and a “Best DUI Attorney.” The American Institute of Criminal Law Attorneys have named James Dimeas a “10 Best Attorney for Client Satisfaction.” The National Trial Lawyers have named James Dimeas a “Top 100 Criminal Defense Trial Lawyer.” AVVO rates James Dimeas as “Superb”, the highest rating possible for any criminal defense attorney in the United States.

If you are facing criminal charges, you can contact James Dimeas anytime for a free and confidential consultation. You can always talk to James Dimeas by calling him at 847-807-7405.

Additional Resources:

Illinois Constitution

Fifth Amendment, Legal Information Institute.

Additional Blogs:

What Happens if You Are Arrested, by James G. Dimeas, Chicago Criminal Lawyer Blog, April 3, 2018.

When Can the Police Search My Car, by James G. Dimeas, Chicago Criminal Lawyer Blog, February 21, 2018.