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Are You Being Threatened with Double Jeopardy?


What comes to mind when you think of the 5th Amendment?  Chances are your first thought is the right to remain silent, or maybe the right to have an attorney.   But there is another important clause to this amendment to our constitution: protection from double jeopardy.

What is Double Jeopardy? 

Thought to have originated in ancient Rome, the concept of this important clause in the 5th Amendment guarantees protections from being charged for a crime after having been acquitted of that crime in an earlier trial.  Hand in hand with this prohibition is the legal inability to the same action for two different crimes.  It’s not as complicated as it sounds. If someone was driving drunk and killed a pedestrian, that drunken driver might be charged with both the DUI and the vehicular manslaughter, since they are two separate and distinct crimes that are linked in one event.  If acquitted, a disgruntled prosecutor cannot retry the case in hopes of a different outcome. Likewise, the 5th Amendment would not allow for charges of both vehicular manslaughter and murder, since both charges would be directed toward a single incident, the death of the pedestrian.

Waiving 5th Amendment Rights Can be Dangerous 

In the event a defendant relinquishes their 5th Amendment rights and the claim to double jeopardy in a plea deal, they are not allowed to reassert that claim later. This was litigated in the 1989 case of United States v. Broce, which dealt with a conspiracy case that was settled with a plea. Though they were convicted of two conspiracies, the defendants claimed there was just one, and demanded the second count be set aside.  To their great disappointment, the court found that the respondents had given up their ability to raise a double jeopardy defense in the plea agreement, even though the original defense attorneys had not adequately explained this to the defendants at the time.

Acquitted on Some Counts but Hung on Others 

Suppose a trial jury cannot reach a verdict on certain counts, but acquits on others? Is it possible to retry defendants on the elements that were left unresolved, or does double jeopardy eliminate that possibility? The case of Yeager v. United States provides some answers.

That case involved F. Scott Yeager, who was acquitted of security fraud, conspiracy and wire fraud.  But the jury was unable to reach a verdict on another 119 counts which involved charges of money laundering and insider trading. A mistrial was declared on those counts, and Yeager was indicted on them for a second time.  Yeager appealed to the U.S. Supreme Court on the basis of collateral estoppel, or double jeopardy,—the very doctrine that protects criminal defendants from being retried a second time on the same charges. Yeager won his appeal.  The Fourteenth Amendment, in its guarantee of due process, makes this ruling binding at both the federal and state levels.

Fighting for Your Rights 

If you are facing criminal charges, you already know that the road to justice can be very convoluted. At Lobo Law our Las Vegas criminal defense attorneys work diligently on your behalf throughout the journey. Schedule a confidential consultation in our office today.


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