Double Jeopardy

Double jeopardy is a fundamental principle in criminal law that protects people from being subjected to multiple prosecutions or punishments for the same offense. The concept of double jeopardy is rooted in the Fifth Amendment of the United States Constitution, which states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This constitutional provision is the foundation for the federal prohibition against multiple prosecutions and punishments for the same crime. 

When Does Jeopardy Attach?

Jeopardy attaches in a jury trial when a jury is empaneled and sworn, or in a bench trial, when the first witness is sworn in. Once jeopardy attaches, the defendant is protected from being retried for the same offense after an acquittal or conviction, except in specific circumstances, such as after a successful appeal. 

What About a Mistrial?

A mistrial occurs when a trial ends without a final verdict due to circumstances like a hung jury or a procedural error that makes a fair trial impossible. After a mistrial, the prosecution has the option of retrying the case, dismissing the case, or negotiating a plea deal. In both federal cases and in California, a retrial after a mistrial generally does not constitute double jeopardy because there has been no final judgment. 

California Penal Code Section 654

Penal Code section 654 is a statute that plays a significant role in the context of double jeopardy, particularly concerning multiple punishments for the same act or omission. Specifically, this statute prevents multiple punishments for a single act or omission that violates multiple statutes and ensures that a defendant is not subjected to excessive penalties for the same conduct.

For example, if a defendant is convicted of both robbery and assault arising from the same incident, section 654 may be invoked to prevent dual punishment for the same act. The court can choose to stay or dismiss one of the charges, resulting in a single punishment. However, if a defendant is tried for a robbery that occurred on one day and an assault that occurred the next day, those crimes arise from different incidents. Therefore, section 654 may not protect the defendant from being punished for each offense separately. 

Furthermore, in the context of DUIs, a defendant may be charged with both driving under the influence of alcohol and driving under the influence of alcohol with a .08% or higher blood alcohol content. However, they cannot be punished for both offenses, since those arose out of the same course of conduct. 

Ultimately, double jeopardy is a fundamental legal principle that safeguards individuals from facing multiple prosecutions or punishments for the same offense. California Penal Code section 654 also serves a similar purpose, in that it prevents multiple punishments for the same course of conduct, ensuring that defendants receive fair and proportionate penalties.

If you are facing criminal charges for a misdemeanor or felony offense where jeopardy has already attached or if you believe you are being punished for the same course of conduct, in violation of Penal Code section 654, it is absolutely critical that you discuss your case with an experienced criminal defense attorney immediately. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has experience trying cases, arguing constitutional violations, and reducing excessive and unlawful punishments. 

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453. 

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