Military Defense Lawyer Answers Commonly Military Law Questions

Is there Double Jeopardy in the Military Justice System?

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Is there Double Jeopardy in the Military Justice System?

Criminal defense attorney, Michael Waddington, discusses whether there is Double Jeopardy in the Military Justice System. Call 1-800-921-8607 to speak with a criminal defense assault defense attorney today.

Double Jeopardy

Can you be tried by the federal government and by the state for the same offense? The answer is yes. You can be tried by both the federal government, and the state for a case stemming from the same incident. However, it usually will come down to whether or not there’s an agreement between the state court and the military or federal court. Generally speaking, the government does not want to waste resources by trying the same person for the same crime, although it is permissible to do so.

The reason is that, under the Constitution, double jeopardy applies only to sovereigns. The state government is considered a sovereign, or a separate entity, and the federal government is also considered a separate entity. They’re not the same sovereign. Therefore, one could charge you, and the other could charge you at the same time for the same offense. A person could go to trial and be serving sentences for both. This is very unlikely, however, because most states don’t have the resources to waste time and prosecute you for the same thing the military just got a conviction on.

You Can be Tried in a State and Federal Court for the Same Criminal Conduct

Nevertheless, it is not uncommon for a person to be acquitted in a military court, and then the state picks the case up and tries to win it, and do a better job that second time around, and vice versa. So don’t think that because you’ve already been tried in one place, you can’t be tried for the same crime in the other.

Even if you’re arrested, police can only search your phone under limited circumstances. After a person has been arrested, the police generally may search the items on her person and in her pockets, as well as anything within her immediate control, automatically and without a warrant.

Double Jeopardy

The double-judge clause states that federal and state laws protect defendants from being twice punished for the same crime. Double jeopardy prohibits a state to prosecute and punish a defendant for the same crime after acquittal or conviction. Since double warranting excludes different prosecutions for the same offense, it does not protect a defendant from multiple prosecutions for multiple offenses.

If a case has reached that conclusion, double protection can be used to protect a defendant from being twice prosecuted for the same crime. Jeopardy is terminated when a judge finds that the evidence is insufficient to convict the defendant, pronounces an acquittal, and passes the case on to a jury. If a jury acquits or convicts a defendant, the government cannot prosecute him again.

If an appeals court overturns the conviction, prosecutors could try the defendant again

If an appeals court overturns the conviction, prosecutors could try the defendant again. The danger begins – and continues – in cases where a jury is sworn in. Some criminal trials end differently than others, with acquittals or convictions.

For example, if after a preliminary hearing a judge dismisses the charges for a lack of evidence it does not prevent the government from bringing new charges for the same offense, and there is no risk to that time. If the state dismisses a case before the trial begins, there is no order to start over. Once the state and the defense have selected their jurors, the clerk, and the judge takes the oaths in court, the defendant cannot be retried.

Separate sentences for multiple prosecutions are permissible

Separate sentences for multiple prosecutions are permissible as long as they are not based on the same offense. If several offenses are considered to be separate, a defendant may be punished with several penalties for such a separate offense. However, if a jury is instructed by a judge that the elements of a particular crime are less than those of the offenses included, and the jury pronounces a guilty verdict for the lesser offenses, but is silent on the crime itself, the double jeopardy clause precludes the repetition of that crime.

Prosecution for the same crime extends to crimes, misdemeanors, and juvenile justice

The Fifth Amendment’s text refers to a life and death in danger, but the Supreme Court has stated that prosecution for the same crime extends to crimes, misdemeanors, and juvenile justice, regardless of the possibility of a penalty. Most state constitutions protect individuals who are tried for the same crime. The court has analyzed the last question and resolved double jeopardy litigation in various ways, depending on whether the state is trying to kill the defendant or imposing multiple penalties.

States and the Federal Government can prosecute a person for the same offense

The fact that a state can prosecute a person does not prevent the federal government from prosecuting them for the same offense or vice versa. This applies regardless of whether the criminal prosecution of criminal offenses or misdemeanors takes place at the state or federal level. For example, if a suspect is convicted on both counts of kidnapping a victim across state lines, that conviction can be punished by the state without involving the government.

This provision is known as the Double Jeopardy Clause prevents the state or federal government from involving a person for the same crime more than once or imposing more than one penalty for one single offense. When the government endangers a defendant, the Fifth Amendment clause applies. The states are not prohibited from double jeopardy, because the Fifth Amendment protections apply not only to the federal government but also to states that are subject to the doctrine of inclusion.

A conviction of a person convicted in federal court for the same act can be upheld

In the federal system, different government entities have different interests in serving the definition of crimes and the enforcement of their laws, and when jurisdiction overlaps, it is a person who breaks the law in more than one unit. 52 Courts have generally accepted the dictum that the principle that the prosecution of the same defendant by two governments for the same conduct does not constitute double jeopardy, and that it is not in the United States (Lanza, 53) that a conviction of a person convicted in federal court for the same act can be upheld. If a suspect is found guilty of capital murder for a robbery, he cannot be charged with another robbery in connection with the same criminal episode. Exactly the same behavior that is involved in the state can be prosecuted, but that does not prevent the federal government from doing the same or vice versa.

U.S. Supreme Court ruled in United States v. Perez

The U.S. Supreme Court ruled in the 1824 United States v. Perez case that a defendant is not protected by the double jeopardy clause if the trial concludes with a verdict delivered by a hung jury or a judge. Extending the boundaries of logic, the court ruled that state and federal governments are separate sovereignties. The court found that sovereigns have their own misdemeanors, which means that in this type of case the defendants cannot be prosecuted for the same crime.

James Madison’s original draft of the Double Jeopardy Clause

James Madison’s original draft of the Double Jeopardy Clause provided that a person can be subject to more than one penalty for the same offense at a trial (emphasis added); the United States v. Halper, 490 U.S. 435, 435, 440, 109 S. Ct. 1892, 1897, 104 L. Ed. In Halper (1989), a civil sanction under the law is a penalty if it is disproportionate, compensates the government for its loss, and is disproportionate if the price is declared a deterrent rather than a retaliatory measure. According to the United States in Figueroa v. Soto, 938 F.2d 1015, 1020 (9th Circuit), the state and federal authorities are not affected by close coordination between the public and federal authorities, including the hiring of agents of a sovereign to assist other sovereigns in their prosecution.

Former Jeopardy (Article 44, UCMJ)

No person may, without his consent, be tried a second time for the same offense. Article 44(a); U.S. CONST. AMEND V.

When Jeopardy Attaches

A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused, is a trial. Article 44(c). In the military, jeopardy does not attach until an accused is put to trial before the trier of the facts. See United States v. Ragard, 56 M.J. 852, 855 (A. Ct. Crim. App. 2003).

In a military judge alone case, jeopardy attaches after an accused has been indicted and arraigned, has pleaded and the court has begun to hear evidence. See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing McCarthy v. Zerbst, 85 F.2d 640, 642 (10th Cir. 1936)). In a panel case, this occurs when the members are empaneled and sworn. United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing Serfass v. United States, 420 U.S. 377, 390-91, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975)).

Withdrawal of charges after arraignment but before the presentation of evidence does not constitute former jeopardy, and denial of a motion to dismiss charges at a subsequent trial is proper. United States v. Wells, 26 C.M.R. 289 (C.M.A. 1958).

Double jeopardy does not attach when charges are dismissed for violating the statute of limitations. Thus, the government is not barred from prosecuting the accused on a charge sheet that had properly been received by the summary court-martial convening authority within the period of the statute, following the dismissal of charges for the same offense (but on a different charge sheet) that was not received within the period of the statute. However, if evidence was introduced in the first proceeding, the first is considered a trial, and jeopardy attaches. United States v. Jackson, 20 M.J. 83 (C.M.A. 1985).

When Former Jeopardy Bars a Second Trial.

A determination that jeopardy attaches does not end the analysis. Double jeopardy bars retrial only when the military judge or the panel has made a determination by regarding guilt or innocence. See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008); United States v. Germono, 16 M.J. 987, 988 (A.C.M.R. 1988).

An accused is “acquitted” only when a ruling of the judge actually resolves some or all of the factual elements of the offense charged in the accused’s favor, even if some or all of that resolution may be incorrect. See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing United States v. Hunt, 24 M.J. 725, 728 (A.C.M.R. 1987) and United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977)).

Retrial for offenses was not barred when the military judge granted a defense motion to dismiss on speedy trial grounds after hearing evidence in the first trial, but before entering findings. United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008).

Same Offense

Once tried for a lesser offense, accused cannot be tried for a major offense that differs from the lesser offense in degree only. Trial for AWOL bars subsequent trial for desertion. United States v. Hayes, 14 C.M.R. 445 (N.B.R. 1953). “The protection against double jeopardy does not rest upon a surface comparison of the allegations of the charges; it also involves consideration of whether there is a substantial relationship between the wrongdoing asserted in the one charge and the misconduct alleged in the other.” United States v. Lynch, 47 C.M.R. 498, 500 (C.M.A. 1973) (doctrine of former jeopardy precluded another trial for unauthorized absence from a different unit and shorter time period). But see United States v. Robinson, 21 C.M.R. 380 (A.B.R. 1956) (permitting, after conviction for an AWOL and after disapproval of findings and sentence by the convening authority, trial for AWOL for the same period but from a different unit than was previously charged); United States v. Hutzler, 5 C.M.R. 661, 664 n.3 (A.B.R. 1951).

Nonjudicial punishment

Nonjudicial punishment previously imposed under Article 15 for a minor offense and punishment imposed under Article 15 for a minor disciplinary infraction may be interposed as a bar to trial for the same minor offense or infraction. R.C.M. 907(b)(2)(D)(iv). “Minor” normally does not include offenses for which the maximum punishment at a general court-martial could be dishonorable discharge or confinement for more than one year.

If an accused has previously received punishment under Article 15 for other than a minor offense, the service member may be tried subsequently by court-martial; however, the prior punishment under Article 15 must be considered in determining the amount of punishment to be adjudged at trial if the accused is found guilty at the court-martial. United States v. Jackson, 20 M.J. 83 (C.M.A. 1985); see UCMJ art. 15(f); R.C.M. 1001(c)(1)(B); United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (accused must be given complete credit for any and all nonjudicial punishment suffered—day-for-day, dollar-for-dollar, and stripe-for- stripe).

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