A Look at Double Jeopardy in Criminal Cases in Indiana

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Posted in On May 10, 2015

Double Jeopardy and You Criminal Case


Why don’t my charges amount to double jeopardy?  Why can I be put on trial again after a mistrial is declared?  These are just two examples of the types of questions clients sometimes pose with respect to their pending criminal cases.  Many people are familiar with the phrase double jeopardy, but not necessarily as familiar with when double jeopardy may or may not come into play. In this blog the Indianapolis Criminal Defense Attorneys at Banks & Brower take a closer look at double jeopardy.
The Fifth Amendment to the U.S. Constitution (also applicable to the states) provides that a person cannot “be subject for the same offense to be twice put in jeopardy of life or limb.”  Like many provisions in the Constitution, the language seems straightforward.  However, like those other provisions, the application of this prohibition is not as simple as it seems.  Additionally, the Indiana Constitution contains a similar prohibition that in many cases provides greater protection than its federal counterpart.
Double jeopardy provisions generally protect against retrial for the same offense after acquittal, retrial for the same offense after conviction, and multiple punishments for the same offense.  Again, however, the prohibitions are not applied in such a straightforward fashion.  We will look briefly at a few common examples of issues that may arise in a criminal case.
At a jury trial, jeopardy does not “attach” until the jury is impaneled and sworn.  So if a mistrial is declared at some point prior to swearing in the jury, double jeopardy will not bar a subsequent trial.  Even if the mistrial is subsequent to impaneling and swearing in the jury, however, some circumstances will allow retrial.  Those include where a defendant consented to a mistrial, where it became impossible to proceed in conformity with law, where there was a defect which would result in a reversal as a matter of law, where prejudicial conduct makes it impossible to proceed without injustice to one party, where the jury could not reach a verdict, or where false statements of a juror during voir dire prevented a fair trial.
There are nuances and exceptions even to these circumstances, however.  If a prosecutor brought about any of the above with the intent to bring about a mistrial, a retrial will not be permitted.  Further, where an offense should have been charged in a former prosecution, the charge usually cannot be later brought.
Many people have the misconception that if an appellate court reverses a conviction the accused cannot be retried.  Barring unusual circumstances, this is true only if the conviction is reversed because insufficient evidence was introduced at trial to sustain the conviction.
If a crime spans two states, and another state either convicts or acquits a defendant, generally Indiana will be barred from instituting a later prosecution.  However, both the State and federal government may generally prosecute for the same offense without offending double jeopardy.
Many double jeopardy issues involve multiple charges for what appear to be the same offense or series of offenses.  The resolution of these issues involve an analysis of the elements of the crimes and the facts giving rise to the alleged offenses.  Much case law has been developed to devise mechanisms for what is or is not a violation of either state or federal prohibitions against double jeopardy, and your attorney should be sure that any plea or judgment of conviction and sentence will not offend double jeopardy principles.  Many potential double jeopardy issues will involve “stacked” charges, where the prosecutor files numerous charges involving the same or similar acts, or the same continuing series of acts.  It is in these situations where you and your attorney should be certain which and how many of the charges you may ultimately be convicted of.
It’s probably clear by now that double jeopardy issues are far from straightforward.  As with many statutes and constitutional provisions, the cases are not black and white and require an attorney to research and review your particular issues.  After all, double jeopardy issues may be waived or otherwise disposed of like many other provisions which are intended to protect you.  Therefore, it is important to have an experienced criminal defense attorney to represent you and be sure that your rights are being protected and asserted as necessary.
If you or someone you know is facing criminal charges, it is important to speak with an experienced Indianapolis Criminal Defense Attorney at Banks & Brower.  We are available to answer your questions 24/7 at 317-870-0019 or info@banksbrower.com.