“Double Jeopardy” is a protected right guaranteed by the Fifth Amendment to the United States Constitution and the Michigan Constitution.  It means you cannot be prosecuted twice for the same crime.  However, the concept of double jeopardy is not well understood.

You Are Not Forever Protected

Many people believe that once you’ve been tried and convicted or tried and acquitted upon the circumstances leading up to a particular criminal charge, any government is forever barred from prosecuting you as well for the same crime arising from that same set of circumstances.  That is not necessarily true.

It all depends on what government is bringing the charges.  While its true that the state cannot retry a person for murder (for example), once he or she has been found not guilty, double jeopardy does not mean that the federal government is forever barred from bringing its own murder prosecution provided the suspect violated state and federal laws.

For example, in United States v Roberto Miramontes Roman, the defendant was acquitted on state charges of aggravated murder.  Thereafter, the defendant was charged in federal court on 11 counts growing out of the same events.  After being convicted in federal court, the defendant appealed.  The appellate court concluded that the federal case did not amount to a do-over of the state case and the federal case also did not violate double jeopardy.  Specifically, the reviewing court stated that the federal prosecution was appropriate because state and federal prosecutorial entities are independent sovereigns.  As such, the state government and the federal government are always free to pursue their own prosecutions.

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Understanding Dual Sovereignty

What about charging a defendant with the same crime at both state and federal levels?  Double jeopardy and “dual sovereignty” are completely different concepts.  Double jeopardy only applies to one jurisdiction at a time.  A state government cannot bring a second prosecution against you for the same state crime once you’ve been acquitted.  The same goes for the federal government regarding a federal offense.

The concept of dual sovereignty means that the federal and state governments may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state and federal laws.  For example, if you steal goods and sell them in your home state and then take the money you earned from selling the stolen goods and deposit it into your bank, you could face state criminal charges for the theft and federal charges for wire fraud.

It also does not matter if you have already been prosecuted by one jurisdiction, nor does the outcome matter.  You can be prosecuted in state court for the state offense and then stand trial for the same act in a federal court if it is also a federal offense.  If you are convicted in both jurisdictions, you can be punished by both courts.