Double jeopardy might not provide the legal protection you think

On Behalf of | Jul 7, 2022 | Criminal Defense |

The United States Supreme Court decided an interesting case that discusses the issue of double jeopardy and how it works. While some of the core issues involve dual sovereignty matters that don’t come up that often, the case involves a basic understanding of double jeopardy and how it could play out in the court system

Many people facing state and federal charges for a single illegal act are surprised to learn that they are not protected by double jeopardy.

Denezpi v. United States

In Denezpi v. United States, the court looked at a criminal case involving a Navajo Indian who had been convicted on criminal charges in the CFR court (which “administers justice for Indian tribes in certain parts of Indian country ‘where tribal courts have not been established’”) and indicted in Federal court.

He moved to dismiss the federal charges since he was previously prosecuted based on the same underlying criminal acts, which would make the federal charges a violation of the Constitution’s double jeopardy clause.

The Supreme Court ultimately denied the defendant’s claim of double jeopardy.

Gamble v. United States, how double jeopardy actually works

The court cited one of the key double jeopardy cases, Gamble v. United States. Gamble is a clearer case to show how double jeopardy works. The defendant had already pleaded guilty of felon in possession charges in the state courts of Alabama. Then he was brought up on federal charges for the same act. The Supreme Court upheld the lower court’s denial of the defendant’s petition to dismiss the charges on grounds of double jeopardy.

The core of the double jeopardy doctrine, as explained in both Gamble and Denezpi, involves a guarantee of not being deprived of life and liberty for the same offense. “Offense,” according to the Court, does not mean the same as “criminal act.” When two different entities prosecute you for the same charges, it is not a violation of double jeopardy. As long as each entity has proper authority, the same act can be considered multiple offenses, one for each governing entity whose laws were broken by the single act.

What does this mean for you?

For many people facing criminal charges, the notion that double jeopardy might create a protection can provide false confidence.

Cases that look like double jeopardy but are not come up often in criminal actions that begin as prosecutions in state courts. On occasion, and what seems to be at an increasing rate, federal prosecutors take on the case and the state leaves it to them; but that doesn’t mean they have to. It is not uncommon for both state and federal governments to prosecute for the same act; if it’s an act that breaks both state and federal laws, they are entitled to do so.

Another common instance involves racketeering or what is commonly referred to as RICO cases. In RICO cases, the federal government can use prior cases that have already been decided and use the underlying acts in those cases as a predicate offenses (underlying offenses) for federal RICO prosecutions to prove the pattern of racketeering activity.

The bottom line is that the double jeopardy protections guaranteed by the Fifth Amendment to the Constitution are not as iron clad as they might seem. There are numerous concepts that have embedded themselves into our legal precedents that severely weaken these protections. If you have been charged with a crime, and you think you might have a double jeopardy claim, contact attorney Darryl A. Goldberg to discuss how to fight back.


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