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In general, a defendant is subject to only one prosecution for a criminal offense. In other words, if the defendant is acquitted (not guilty) or found guilty after a criminal prosecution the criminal case is over. The prosecutor may not later bring new criminal charges based on the same conduct (pleading guilty is the same as being found guilty).

For purposes of double jeopardy the important questions are "what is jeopardy?, and when does jeopardy attach?"  "Jeopardy"simply means danger or threat of prosecution; jeopardy, "attaches" when the jury is sworn (usually immediately after jury selection). If the case proceeds without a jury then jeopardy attaches when the first witness is sworn in to testify.

As a important corollary to the double jeopardy rule, is the rule that the prosecutor must charge all criminal offenses arises out of the same criminal conduct. For example: If the defendant is charged with robbing two people at a convenient store, the prosecutor must prosecute both robberies at the same time. The prosecutor may not divide the robbery charges and bring separate prosecutions for each robbery.       

Remember, "jeopardy attaches" when the jury is sworn in or when the first witness is sworn to testify. What this means is that the prosecutor can avoid double jeopardy issues by dismissing a criminal charge in the pretrial stages (before trial) and then later re-file the criminal charges in a new criminal filing. Time for filing criminal charges by the prosecutor is subject to thestatute of limitations. In addition, there are limits on how many times a criminal charge can be dismisses by a prosecutor before the case is dismissed with prejudice (Where the prosecutor is forbidden from re-filing the criminal charge by law).

Double Jeopardy subsequent prosecution by the same sovereign. This means that neither the federal government, nor the state of California, may place the defendant in threat of prosecution more than once. However, the federal government and the state government may place the defendant in jeopardy at the same time. This means that if the defendant is acquitted or found guilty in state court he or she may still be criminally liable in federal court based on the same criminal conduct. The reversal is also true.

Furthermore, double jeopardy does not prevent re-prosecution of a defendant if the defendant consents to re-prosecution (defense motion for mistrial during trial), or where the jury is undecided on the defendant's guilt (hung jury), or where there is a mistrial based on an emergency such as illness of the judge or act of nature which disrupts the trial.

Finally, double jeopardy rules apply to criminal law. Therefore, if a criminal defendant is found guilty or acquitted in a criminal case he or she may still be found civilly liable in a civil court for the same conduct. For Example: If the defendant is found not guilty for the crime of theft the defendant may still be found civilly liable for the same theft offense in civil court.

To learn more about the defense of double jeopardy and criminal defense contact Criminal Defense Attorney Christopher Dorado today. Initial consultations are free and our office is available 24/7: 909.913.3138  

Criminal Defense Attorneys


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Common Defenses to Criminal Charges

  • Insanity
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  • Entrapment
  • Due Process Violations
  • Statute of Limitations
  • Double Jeopardy
  • Search & Seizure Violations
  • Mistake of Fact
  • Insufficient Evidence
  • Alibi
  • Claim of Right
  • Procedural Defenses
  • Technical Defenses
  • Consent
  • Lack of Jurisdiction
  • Coerced Confessions
  • Jury Nullification
  • Necessity
  • Self Defense
  • Defense of Other People
  • Duress

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Double Jeopardy Defense / Defense to Crimes

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Law Office of Christopher Dorado 1030 Nevada Street. Suite 105 Redlands, CA. 92374