Yes, You Can Be Tried Twice For The Same Crime

Despite the Double Jeopardy Clause of the Constitution, the federal government retains the right to try a person for a federal crime even after a full acquittal based on the same facts in state court (and vice versa). It’s called the dual sovereignty rule. Back when the federal criminal code covered very little, it was a minor footnote to the law. These days, with a federal crime for practically every state crime, it’s a two-bites-at-the-apple rule.

In doing some research for the U.S. Commission on Civil Rights last week, I noticed that charges had been filed by both federal and state authorities in all the high-profile hate crimes cases I was looking at. I worried this sort of thing would happen back in 2009 when Congress was set to adopt the Hate Crimes Prevention Act. In the Pittsburgh synagogue case, there was even some turf fighting over it. These cases are real plums for ambitious prosecutors.

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Sooner or later, somebody will be acquitted for good reason. Nevertheless, there will be an outcry for a re-prosecution. Indeed, this happened in the Trayvon Martin case. Fortunately for George Zimmerman the flesh wounds on the back of his head lent a lot of credibility to his claim of self-defense, so the federal authorities decided not to proceed. It makes me very nervous to think that in politically charged cases an accused will have to prove himself innocent twice (and may not always be as lucky as Zimmerman).

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Of course, for many of the law’s supporters, the two-bites-at-apple aspect of the law is not a bug but its most important feature.



h/t GH


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