Monday, September 21, 2009

Double Jeopardy: Beware of the Feds!

Everyone is familiar with Double Jeopardy, aren't they? And no, I am not referring to the second half of the quiz show, "Jeopardy!" I am referring to the Fifth Amendment's prohibition against trying a defendant twice for the same crime! OR, as Alex would put it, in the form of a question: "What is the Fifth Amendment's prohibition against trying a defendant twice...."

But what does double jeopardy really mean? Did you know, for example, that double jeopardy does NOT prevent the federal government from indicting you and trying you in federal court, even after you have been acquitted in state court for the same crime?! The courts have actually held that this scenario does not constitute double jeopardy, because it involves two sovereigns: state and federal. The Rodney King police beating case is one example of this situation. There, you may recall, the police officers were tried and found not guilty in state court, and then they were charged and tried again in federal court. While this doesn't happen often, the point is that it can happen and does not constitute double jeopardy.

But did you also know that, before a federal prosecutor may seek a federal indictment against a criminal defendant who has already been tried for the same offense by the state, he or she must seek permission and a waiver from the Department of Justice. Do you know what this policy waiver is called?

As Alex would answer: "What is the "petit policy?!" What do you think about this practice by federal prosecutors of trying someone twice for the same crime?

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