Double jeopardy is one of the fundamental tenets of the American criminal justice system. It is also one of the most misunderstood concepts. See also understanding criminal law concepts.
What We Get Wrong About Double Jeopardy
Both lawyers and non lawyers systematically miss important elements of this idea.
What Non Lawyers Get Wrong
Non attorneys incorrectly believe that a second trial on the same charges is always prohibited. Lawyers know that second trials are, in fact, quite common.
What Lawyers Get Wrong
However, even lawyers regularly miss a genuine double jeopardy event when it’s happening right in front of them.
Below You’ll Find Six Video Lessons That Completely Explain The Double Jeopardy Clause
I created six videos that talk about and describe double jeopardy in a way that can be understood by anyone who wants to understand it.
I’ve stripped out the legal talk and described the ideas in plain English.
Let’s begin with what the constitution has to say about the concept of double jeopardy…
What The Fifth Amendment Says About Double Jeopardy (Video #1)
The fifth amendment to the United States Constitution provides that no person shall
On its surface the double jeopardy clause prohibits a second, or successive, trial to afford the prosecution another opportunity to provide evidence that it failed to present at the first trial. People v. Lopez, 229 Ill. 2d 322, 367 (2008).
But it’s not quite that simple…
Two Sides Of The Same Coin (Video #2)
Why do we have a rule against double jeopardy?
This question is essentially asking for a double jeopardy definition.
The rule is designed to do two things. Think of two sides of the the same coin.
The rule against double jeopardy –
- Acts as a Restraint on the Prosecution
- Protects a Defendant
The prosecution is prevented from abusing their authority and limits overreach. The accused is protected from abuse from the procession and from repeated prolonged prosecutions.
Specifically, the double jeopardy clause protects against
(1) A second prosecution for the same offense following acquittal,
(2) A second prosecution for the same offense following conviction,
(3) Multiple punishments for the same offense.
Indeed, the prohibition against trying a defendant twice for the same crime is the sine qua non of American due process standards. Because a second prosecution subjects a person to the ignominy alluded to above, the protection against double jeopardy embraces a defendant’s “valued right” to have his trial completed by a particular tribunal.
Double Jeopardy Is A Shield Not A Sword (Video #3)
Shield Not A Sword
We have to understand that when we say double jeopardy has been implicated on a criminal proceeding the only remedy is dismissal of the charges with prejudice.
That means the state is not allowed to prosecute the charges against the accused. Thus, ending the prosecution would deny the State its right to convict and punish those who have violated its laws.
Because the remedy for a double jeopardy is so sever the United State Supreme Court has stated that a defendant should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.
The clause is intended to be used as a shield and not a sword.
Not Applied Mechanically
With this in mind, the cases tell us that the rules with regard to double jeopardy should not be applied in a mechanical nature. If the interests the rules seek to protect are not endangered then a mechanical application should not be applied.
If no true double jeopardy concern exists we should not allow defendant’s to frustrate society’s interest in enforcing its criminal laws.
Why Is It Common To See Second Trials After A Reversal On Appeal And A Hung Jury? (Video #4)
After a reversal of a conviction after an appeal and after a hung jury the double jeopardy clause ordinarily does not preclude retrial.
After Reversal On Appeal Due To Trial Error
If an appellate court reverses a conviction it will have done so because it found error in the trial. Appellate courts routinely find that double jeopardy is not a bar to a subsequent trial because the public would lose a chance to prosecute the crime.
There are no multiple convictions to worry about. After every reversal on appeal the appellate courts are quick to screen the case for “sufficiency of the evidence.”
The courts say that retrial is only prohibited when the evidence introduced at the initial trial was insufficient to sustain the conviction. People v. Lopez, 229 Ill. 2d 322, 367 (2008).
After A Dead Locked Or Hung Jury
The calculation is much the same after a hung jury.
On review an appellate court will look at the reasons for a hung jury. In reviewing whether the trial court acted within its discretion in declaring a mistrial on the basis of a jury deadlock, lower courts have considered several nonexhaustive factors as useful guideposts.
These factors include:
(1) The jury’s collective opinion that it cannot agree,
(2) The length of the deliberations,
(3) The length of the trial,
(4) The complexity of the issues,
(5) Any proper communications that the judge has had with the jury, and
(6) The effects of possible exhaustion and the impact that coercion of further deliberations might have on the verdict (potential prejudicial impact of continued forced deliberations).
People v. Andrews, 364 Ill. App. 3d 253, 266-67 (2006).
The jury’s own statement that it is unable to reach a verdict has been repeatedly considered the most important factor in determining whether a trial court abused its discretion in declaring a mistrial.
The Supreme Court, however, long ago explained that principles of double jeopardy do not bar reprosecution after discharge of a jury on the grounds that the jury cannot reach a verdict.
The rule has been continuously reaffirmed because “a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” United States v. Jorn, 400 U.S. 480 (1971).
- Episode 620 – People v. Drake, 2019 IL 123734 (March) (appellate court should consider excluded evidence when weighing whether double jeopardy should prevent a retrial).
- Episode 622 – People v. Kimble, 2019 IL 122830 (April) (Generally Speaking A Hung Jury Will Meet The Manifest Necessity Analysis And Avoiding Double Jeopardy Issues, no double jeopardy problem even if the judge declared hung jury kinda early)
- Episode 398 – People v. Kimble, 2017 IL App (2d) 160087 (September) (this is the lower appellate opinion for the above case).
What If A Mistrial Is Declared For Other Reasons? (Video #5)
Why would we say jeopardy has attached at any time before the jury has a chance to reach an actual verdict?
So if we believe in the principles that we want to restrain the prosecution from unfettered authority to bring charges and offer an accused some protection against prosecutorial abuse then we have to say “jeopardy” attaches sometime during a prosecution.
However, if we say that jeopardy attaches only after an actual verdict of guilt that would mean the prosecution would be allowed to bring charges against a defendant and dismiss at any time before an actual verdict is reached.
This would mean the prosecution could start a trial and dismiss before the the verdict if they didn’t like how their witnesses testified.
This could lead to the very kind of prosecutorial abuse we say we want to prevent. It would offer the accused no protection at all.
It is an Arbitrary Line
So, we say that “jeopardy” has to attach some time before a verdict.
Exactly where the line is drawn, in a certain sense, is completely arbitrary.
The line just has to be drawn somewhere.
However, we don’t want to draw the line too early in the prosecution. We do want the State to have some flexibility in bringing and dismissing charges as the facts, witnesses, and evidence are developed.
The farther down the jeopardy line is moved, the less flexibility the State would have to dismiss and recharge.
It is easy to imagine a rule that says that “jeopardy” attaches after charges are initially made.
This essentially would rob the state of any flexibility in bringing and dismissing charges against an accused. This kind of super pro defendant protection would come at a high price to the prosecution.
The rule against double jeopardy, at its core, is a compromise between giving the prosecution some charging flexibility and protecting the accused from overreach and abuse.
“When The Jury Is Sworn In” – The Jury Trial Rule
With this in mind, the line has been drawn soon after a trial officially starts. The general rule is that double jeopardy “attaches” after the jury is selected and sworn. See also 720 ILCS 5/3-4(a)(3) which says that:
(1) A defendant who requests or consents to a mistrial is presumed to have deliberately elected to forgo a decision on his or her guilt or innocence before the jury seated at that time.
(2) However, where the court, acting without the defendant’s consent, declares a mistrial, the court necessarily deprives the defendant of his valued right to have a particular jury decide his fate.
“Swearing In The First Witness” – The Bench Trial Rule
In a bench trial, “jeopardy attaches when the court begins to hear evidence.” Serfass v. United States, 420 U.S. 377, 388 (1975). Illinois law applies these same tests in the context of jury and bench trials. Cabrera, 402 Ill. App. 3d at 447.
Retrial Possible Only If…
When the court declares a mistrial without the defendant’s consent, the State should be allowed to retry the defendant only if there was a manifest necessity for declaring the mistrial.
Essentially, in deciding if a manifest necessity exists, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that “particular tribunal,” against the strength of the justification for declaring a mistrial.
Discussing the phrase “manifest necessity,” the Supreme Court held that it cannot be interpreted literally, but that a “manifest” necessity means a “high degree” of necessity.
On review, we may consider several factors, including whether :
(1) the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was the product of events over which the participants lacked control;
(2) the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case;
(3) the difficulty could have been “cured” by an alternative that would have preserved the trial’s fairness;
(4) the trial judge actually considered the alternatives to a mistrial;
(5) a subsequent conviction would be subject to reversal on appeal;
(6) the trial judge acted in the heat of the trial confrontation;
(7) the trial judge’s decision rested on an evaluation of the demeanor of the participants, the “atmosphere” of the trial, or any other factors that similarly are not amenable to strict appellate review;
(8) the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice;
(9) the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated);
(10) the jurors had heard enough of the case to formulate some tentative opinions;
(11) the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence; and
(12) the composition of the jury was unusual.
Embedded in these ideas is the notion that the State, with all of its resources, should not be allowed multiple attempts to convict a person of an alleged offense.
- Episode 041 – More on Double Jeopardy Definition (drawing the line is arbitrary and has to be drawn somewhere)
- Episode 389 – People v. Threatte, 2017 IL App (2d) 160161 (August) (prosecutor got sick in the middle of trial and mistrial was declared)
- Episode 583 – People v. Shoevlin, 2019 IL App (3d) 170258 (January) (serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case, no manifest necessity for it)
What If A Guilty Plea Is Interrupted? Can Double Jeopardy Attach During A Plea Hearing? (Video #6)
Guilty Plea Hearing
The law is not so clear on a guilty plea before sentencing. The case law has established that during a plea hearing jeopardy attaches when the trial court accepts the guilty plea. See People v. McCutcheon, 68 Ill. 2d 101, 106 (1977).
In Cabrera, 402 Ill. App. 3d at 449, the First District interpreted section 3-4(a)(3) to mean the following:
“For purposes of barring reprosecution, section 3-4(a)(3) makes no distinction between a jury or bench trial that terminates improperly and a guilty plea hearing that terminates improperly. An improperly terminated guilty plea proceeding, ‘after a plea of guilty was accepted by the court,’ will bar a subsequent prosecution, no less so than if a jury or bench trial terminated improperly. Inversely stated, just as a jury or bench trial may terminate properly, allowing for a retrial when, for example, ‘manifest necessity’ compels such an outcome, by implication, if the original guilty plea hearing is terminated properly under Illinois law, a successive prosecution is not barred under section 3-4(a)(3).”
But the Illinois Supreme Court has not decided exactly when in a guilty plea a trial court “accepts” the plea so as to cause jeopardy to attach.
Properly Terminated Guilty Plea Does Not Bar A Subsequent Trial
In essence, a proper termination of a guilty plea hearing does not trigger a double jeopardy bar to subsequent prosecution.
However, reprosecution is barred if the trial court improperly terminated the guilty plea hearing.
What Does An Improper Termination Look Like?
We have found no express language, either in statute or case law, that tells us when a proceeding is terminated improperly after the trial court has accepted the defendant’s guilty plea.
However, we do know that there are situations where a trial court may, sua sponte, withdraw its acceptance of defendant’s guilty plea and, therefore, properly terminate the guilty plea proceeding. See People v. Hancasky, 410 Ill. 148, 154-55 (1951). Termination is allowed when defendant is
- Induced by some promise on the part of the State’s Attorney or others in authority
- Where the court has good reason to doubt the truth of the plea or
- Where it is obvious that a defendant has been misinformed as to his rights.
Notably, under well-established Illinois case law, a circuit court has discretion to accept or reject a guilty plea where the defendant proclaims his innocence or the court has good reason to doubt the truth of the plea.
- Episode 040 – People v. Guillen, 2014 IL App (2d) 131216 (November) (defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed the state to dismiss the charges so they could indict on a more serious felony charge)
- Episode 279 – People v. Staple, 2016 IL App (4th) 160061 (December) (defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI mistakenly thinking double jeopardy kicked in)
- Episode 317 – People v. Staple, 2016 IL App (4th) 160061 (December) (Why Do Appellate Court Opinions Finish With A Statement That There Was Sufficient Evidence To Convict?)
- Episode 663 – People v. Gaines, 2019 IL App (3d) 160494 (July) (judge abruptly refuses to continue with the plea hearing creating a double jeopardy conundrum for the prosecution.)
- People v. Ventsias, 2014 IL App (3d) 130275 (July) (Double Jeopardy Does Not Attach on dismissed Charge, Double Jeopardy Attaches After a Guilty Plea)
- Episode 662 – People v. O’Brien, 2019 IL App (2d) 170030 (July) (no double jeopardy concerns where the defendant was allowed to withdraw his guilty plea after improper admonishments.)