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The importance of Double Jeopardy protections

Virginia defendants have the valuable benefit of a state codified Double Jeopardy Clause. They also enjoy the Constitutional right found in the Fifth Amendment of the US Constitution.

Generally, these protections guarantee they cannot be the subject of a criminal trial twice for the same criminal conduct. However, it is not as simple as that.

The Fifth Amendment’s Double Jeopardy Clause

Many are familiar with the Fifth Amendment’s right against self-incrimination and the Miranda warning, but the Fifth Amendment is also home to another vital Constitutional right.

The Double Jeopardy Clause originated in the Fifth Amendment to the United States Constitution. It prohibits the state or federal government from prosecuting anyone more than once for the same crime or sentencing more than once for that same criminal act.

The intent of the framers was to prevent the government from harassing people via repeated prosecutions for the same act. It also aimed to ensure an acquittal was meaningful. There are three unique rights inherent in the Double Jeopardy Clause:

  • To be free from a second prosecution after an acquittal
  • To be free from a second prosecution after a conviction
  • To be free from multiple sentences for the same crime

The meaning of jeopardy

The jeopardy that the law prohibits is that of a conviction upon a finding of guilt. So, a mistrial that avoids the jeopardy of conviction would not cause a prohibition of a second prosecution. Therefore, a second trial for the same crime can occur after a mistrial, generally, with some exceptions.

Virginia’s codified Double Jeopardy statute

Title 19.2 Criminal Procedure is home to the Virginia version of this law. It states that if the criminal act violates more than one statute or ordinance, or one of each, a conviction under one will bar the prosecution under the other.

Title 19.2 also applies to an act that violates both a federal law and a state law. If the alleged act is the subject of a federal prosecution, that prosecution then bars a prosecution under the duplicative state law. Notably, acts of terrorism are an exclusion under the statute.

Thus, one may not be subject to and convicted of both common law manslaughter and statutory manslaughter based on the killing of one person. If the second charge does not mandate proof of any facts distinguishable from the facts required to convict under the first, then the charges are the same and jeopardy applies to prevent sentencing under both.

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Fairfax, VA 22030-7528

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