Can They Get Me Twice? Pennsylvania and Double Jeopardy

Double jeopardy is often a misunderstood concept. Generally it means that you can’t be prosecuted twice for the same criminal charge arising from the same incident but there is more to this concept.

The Fifth Amendment to the United States Constitution provides us with the right against double jeopardy. This Amendment is binding on the states like Pennsylvania and New Jersey, through the due process clause of the Fourteenth Amendment to the United States Constitution. Pennsylvania’s Constitution also has a double jeopardy clause. Both Pennsylvania’s and the US Constitution’s Double Jeopardy Clause protect a person against the following:

  1. A second prosecution for the same offense after acquittal (not guilty);
  2. A prosecution for the same offense after conviction; and
  3. Multiple punishments of the same offense.

A key issue for double jeopardy cases is when jeopardy actually attaches to the State’s or Federal Government’s case. While a person can’t be tried twice for the same crime, the United States Supreme Court has ruled that there is nothing unconstitutional about a state and the federal government prosecuting someone for the same crime.

For example, if you committed a crime in Pennsylvania that also broke some federal law both the federal government and the Commonwealth of Pennsylvania could prosecute you. While the federal government allows this type of prosecution, Pennsylvania will only allow a person to be tried by the federal government and the state if it appears that the state and federal prosecution represents substantially different interests. The permissible prosecution by the state and federal government is known as the dual sovereign doctrine.

Jeopardy attaches to a prosecution when a person is put to trial before the trier of fact (judge or jury). In a jury trial jeopardy attaches only after a jury is impaneled (12 jurors and 2 alternate jurors seated and sworn. In a non-jury trial (bench trial), jeopardy attaches when the judge begins to hear evidence. Double jeopardy does not attach to preliminary hearing proceedings because there is no possibility that a person could be convicted. Double jeopardy also doesn’t attach when a judge accepts a guilty plea that is conditional. Its only when a guilty plea is unconditional and the plea is actually accepted does jeopardy attach.   Finally, in juvenile proceedings jeopardy attaches if the purpose of the proceedings is to determine whether a juvenile has committed any that violated crimes code in Pennsylvania. A juvenile who is subject to an adjudication hearing may not later be retried as an adult for the same charges.

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