B.2(w). Protection from Double Jeopardy

No person may be prosecuted more than once for the same conduct.

This is a basic statement protecting anyone from facing multiple trials for the same behavior – a classic double jeopardy protection. But there is a twist. I have intentionally used the phrase, “for the same conduct,” rather than the traditional “for the same crime.” This is important because, currently, prosecutors charge individuals with a specific crime. If they lose at trial, they then charge a different crime and retry the case. This language puts an end to that type of gamesmanship.

A case must begin in the lowest level of government that has a law against the conduct, in the place where it happened. If that level chooses not to prosecute, the next level of government may do so, but only if the conduct is illegal at that level. This process may continue upward, but once any court has held a trial, no other level of government may prosecute the same conduct, even under a different law.

Sometimes, behavior could violate the law in more than one jurisdiction. Two things happen in those cases. First, sometimes a higher jurisdiction will step in and usurp the case from the more local one. Second, and more relevant to double jeopardy, a case will fail at the trial level. Then, a higher jurisdiction will step in and retry the case. This upward escalation prevents both abuses. The lowest court with jurisdiction gets to take a crack at the case. If they do, and they lose, that’s it. If they choose not to pursue a case, then the next higher jurisdiction can step in, as long as there is a law against the behavior at that level. Regardless of jurisdiction, once a case is tried, it’s done, except for cases where no verdict is reached.

If a trial ends without a verdict—such as through a mistrial—it may be tried again. But if a verdict is reached, the case is final. A judge may not order a new trial even on the weight of the evidence. Prosecutors must bring all charges they intend to pursue before the trial begins.

If they choose not to include certain charges, or if they lose, they do not get a second chance with different charges based on the same conduct.

The only permissible retrial is in cases where no verdict was rendered. Full stop. The practice under Rule 50 of ordering retrial as a Judgment Notwithstanding Verdict based on the weight of the evidence is prohibited here.

There is an allowance for multiple charges or “lesser included” charges, but only if they are all brought to trial at the same time. If the prosecution chooses not to include certain charges but loses the case, they don’t get to go back and try other crimes or lesser offenses later. The principle is clear: the government gets one bite of the prosecutorial apple, period.

If the same conduct may violate both civil and criminal law, both types of cases may proceed. However, civil courts may not award punitive damages in such cases. Punishment is reserved for the criminal process.

Civil courts are about making a victim whole, while criminal trials are about punishment. There will be an overlap between civil and criminal trials for many cases. This language explicitly allows both trials to proceed, but makes the clear distinction that punitive damages, which might be allowed in other civil trials, are prohibited in these cases. The reason is simple: punishment belongs to the criminal courts.