The Double Jeopardy Clause in the Fifth Amendment of the United States Constitution provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life or limb”. The Michigan Constitution of 1963 has a nearly identical provision as applied to state law and this protection is also codified in statute. The idea is to create finality in that a person should not be subject to repeated prosecutions if he or she has either been acquitted the first time or has already been convicted and punished for the same conduct. While the prosecutor and the police have seemingly unlimited taxpayer funds to pursue multiple trials, the average citizen has finite resources to expend on criminal defense legal fees.
There are actually two kinds of protections under the Double Jeopardy Clause: one that shields against multiple prosecutions for the same offense and one that shields against multiple punishments for the same offense. Like nearly all constitution protections, the extent and application of the double jeopardy rule is not exactly cut and dry.
NO MULTIPLE PROSECUTIONS FOR THE SAME OFFENSE
a. WHEN IT APPLIES
- IDENTICAL OFFENSE: No second prosecution permitted after a conviction or after an acquittal (or directed verdict for acquittal) for the same offense.
- OFFENSE WITH SAME ELEMENTS: No second prosecution permitted after a conviction or after an acquittal (or directed verdict for acquittal) if the second offense has all the same elements of the first offense. For example, it would be a double jeopardy violation to first convict the defendant of operating a vehicle without the owner’s permission and then try to prosecute the same defendant for stealing the same vehicle because the evidence required to convict on either is identical.
- REVERSAL ON APPEAL FOR INSUFFICIENT EVIDENCE: If an appellate court or supreme court reverses a conviction on the grounds of insufficient evidence, the prosecutor is barred from retrial on the same offense.
b. WHEN IT DOESN’T APPLY
- “SEPARATE SOVEREIGN” RULE: The Double Jeopardy Clause does not bar the federal government from prosecuting defendant for offenses arising out of the same transaction that he or she was acquitted or convicted of in state court. It also does not bar prosecution for offenses arising out of the same transaction in different states or even different countries.
- “BLOCKBURGER” TEST: The Supreme Court of the United States held in Blockburger v. United States, 284 US 299 (1932) that the Double Jeopardy Clause does not bar prosecution of other offenses arising out of the same criminal transaction IF either offense requires an element that the other does not. For example, a man hits his wife with a lead pipe and is charged with felonious assault and domestic violence for the same act. In Michigan, both are considered distinct offenses under the Blockburger test because they both have a distinct element from the other. Felonious assault requires proving an assault with a weapon and domestic violence requires proving an assault against a spouse. The prosecutor is not prevented from pursuing a conviction on both.
- REVERSAL ON APPEAL FOR PROCEDURAL ERROR: If a conviction is reversed by an appellate court of supreme court for a reason other than insufficient evidence, the prosecutor is not barred from retrying the case at the trial level.
- PRETRIAL DISMISSAL: If the prosecutor dismisses criminal charges prior to trial, there is no bar to reauthorization of the same charges prior to the statute of limitations period ending. The first jeopardy does not attach until the jury is sworn in or until the first witness is sworn in at a bench trial.
- MISTRIALS: If a prosecution ends in mistrial due to a deadlocked jury, a dismissal by the judge on procedural grounds or on motion of the defendant due to a judicial or prosecutorial error, then there is no bar to retrial.
- BRIBERY AND FRAUD: In Harry Aleman v Judges of Circuit Court, Cook County, 138 F.3d 302 (7th Cir. 1998), the appeals court reversed an acquittal after finding that the defendant bribed a judge to find him not guilty of murder after the bench trial. Since the corruption of the judge ensured no risk for conviction, he was never “in jeopardy” in the first place and the prosecutor was not barred from pretrial.
NO MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE
a. WHEN IT APPLIES
- LEGISLATIVE INTENT UNCLEAR: In People v Miller, 498 Mich 13 (2015), the Michigan Supreme Court held that the defendant’s convictions of both operating while intoxicated and operating while intoxicated causing serious impairment arising from the same drinking and driving transaction violated the Double Jeopardy Clause because the Legislature did not clearly express in statute an intent to allow multiple punishments for the same offense.
- CONCURRENT CONVICTION FOR LESSER INCLUDED OFFENSE: A defendant cannot be convicted of both an offense and its necessary lesser-included offense at the same time. A “necessary lesser included offense” is a crime where all of its elements are fully contained within the elements of the greater offense. For example, assault with intent to cause great bodily harm is a necessary lesser included offense of assault with intent to murder because it does not contain any element that is not already included in the greater charge.
b. WHEN IT DOESN’T APPLY
- LEGISLATIVE INTENT CLEAR: If the Legislature clearly permits multiple punishments for the same criminal transaction, then there is no double jeopardy violation. For example, the offense of assault by strangulation, at MCL 750.84(3), explicitly states that this offense “does not prohibit a person from being charged with, convicted of, or punished for any other violation arising out of the same conduct as the violation of this section.” Therefore, prosecuting multiple offenses arising out of the same transaction as assault by strangulation is permitted.
- PROBATION OR PAROLE VIOLATIONS: If a defendant is already on probation or parole for a prior offense and violates those conditions by being convicted of a new criminal offense, it is not a violation of the Double Jeopardy Clause to be violated in both cases. The defendant may be resentenced and punished for the probation violation while also being sentenced and punished for the new offense despite being the same act.
- PERSONAL PROTECTION ORDER VIOLATIONS: The Michigan Legislature has clearly stated that criminal contempt sanctions for violating personal protection orders can be imposed in addition to whatever other criminal penalties may apply for a separate criminal offense.
While the Double Jeopardy provision is an absolute defense where it is appropriate, its use depends on very technical applications of the law. If you or a loved one is facing a criminal prosecution, it is important to have a criminal defense attorney on your side that can determine whether your legal troubles are in violation of the double jeopardy protections under the federal and state constitutions. If you do not know your rights, then you have unwittingly waived them. Contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC to see if double jeopardy applies to your legal situation today.
