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The Double Jeopardy Defense and Examples of Its Use
We receive a steady stream of phone calls asking about whether a certain case or administrative hearing constitutes a violation of the double jeopardy clause of Fifth Amendment (applicable to the states through the Fourteenth Amendment).
Our response to this question often frustrates the caller because to really answer, a lot of details are required. We first must know which governmental agency brought the first prosecution and who is bringing the successive, or second, prosecution or action. We then need to know the outcome of the first action.
It is actually quite rare for the same government agency, i.e., the Los Angeles County District Attorney’s Office, to prosecute an individual a second time for the same offense if in the first prosecution the individual was convicted or acquitted. This would violate the double jeopardy clauses of the federal constitution and the California constitution at Art. 1, § 15. Schiro v. Farley (1994) 510 U.S. 222, 229; People v. Massie (1998) 19 Cal. 4th 550, 563; People v. Bivens (1991) 231 Cal. App. 3d 653, 658-659.
If the first prosecution ends in a dismissal before jeopardy attached (before trial) or there was mistrial declared for good cause, the double jeopardy bar does not protect against a second prosecution by the same agency. People v. Rhoades (2019) 8 Cal. 5th 393, 442-443. Likewise, a separate sovereign agency, i.e., the federal government, may prosecute the same individual for the same offense after the state agency does so, or visa versa. Abate v. United States (1959) 359 U.S. 187, 194; People v. Gonzalez (2015) 241 Cal. App. 4th 1103, 1112, 1114-1115. This shocks most callers.
To understand this better, a few examples may help.
A person may be prosecuted by a federal court after a military court martial proceeding without violating double jeopardy provisions. United States v. Camacho (9th Cir. 2005) 413 F. 3d 985, 988. This is because the military justice system is not the federal sovereign that prosecutes violations of federal criminal laws.
State administrative proceedings would not prohibit a subsequent criminal prosecution based on the same act or omission. People v. Superior Court (Moore) (1996) 50 Cal. App. 4th 1202, 1215 (DMV actions); In re Brown (1995) 12 Cal. 4th 205, 217 (State Bar actions).
The adjudication of a civil forfeiture proceeding would not prohibit a subsequent criminal prosecution based on the same act or omission. United States v. Ussery (1996) 518 U.S. 267, 270-271; People v. Westbrook (1996) 43 Cal. App. 4th 220, 226.
The adjudication of a criminal matter concerning sexual offenses would not prohibit a subsequent Sexual Violent Predator petition based on the same conduct. Seling v. Young (2001) 531 U.S. 250, 263; People v. Ansell (2001) 25 Cal. 4th 868, 884-885. Likewise, adjudication of a criminal matter with not guilty by reason of insanity (NGI) would not bar in a later Mentally Disordered Offender (MDO) petition; and
An inmate who was disciplined for violating prison rules could still face criminal prosecution for violating the same rules. People v. Hayes (1971) 16 Cal. App. 3d 662, 668.
We wish to thank Commissioner James P. Cooper III for a great deal of the material in this article and his article, “Double Jeopardy: Oh no! You again!” that appeared in the Daily Journal on March 25, 2004.
