Double Jeopardydouble jeopardy

Everyone has heard of double jeopardy. Many people have a basic understanding of this concept, but let’s take a closer look at double jeopardy in North Carolina and clear up any confusion or misconceptions.

Where does the concept of double jeopardy come from?

The Fifth Amendment prohibits the government from prosecuting the same person twice for the same offense. Double jeopardy is considered a defense to a criminal charge. Before using this defense, jeopardy must first “attach”.

When does double jeopardy attach to a charge?

  • In superior court, jeopardy attaches after a jury has been empaneled and sworn. It will also attach after a judge accepts a guilty plea.
  • In district court, it will attach after the judge begins hearing evidence.

When does double jeopardy apply?

  • You cannot be prosecuted for a crime after being acquitted of that same charge
  • You cannot be prosecuted after being previously conviction of that same charge
  • You cannot be punished twice for the same conviction

What about mistrials? In and of itself, a mistrial is neither an acquittal or a dismissal. So, does double jeopardy preclude the state from trying a case again after a mistrial has been declared? The answer is, usually not. But let’s take a look at this further.

Mistrials and Double Jeopardy

If a mistrial is declared for a “manifest necessity”, double jeopardy will NOT preclude the case from being heard again. A manifest necessity only exists when some event occurs at trial that creates a situation where the defendant’s right to have the trial continue is outweighed by the public’s interest in fair trials.

  • Most commonly this is seen when a mistrial is declared due to the jury being unable to reach a verdict.

If a mistrial is granted due to a defendant’s motion or with the consent of the defendant, generally, double jeopardy will not preclude a second trial. However, if a mistrial is granted as a result of prosecutorial misconduct or judicial misconduct, double jeopardy will preclude that offense from being heard again.

If you have been charged with a crime or have a question about using the defense of double jeopardy, you should contact a criminal defense attorney. Gilles Law has criminal defense lawyers practicing criminal defense in North and South Carolina, both at the State and Federal levels.