Wisconsin's Double Jeopardy Clause: 3 Key Protections

Updated by Attorney Stangl on April 1, 2016


At Stangl Law, we're committed to defending clients against unnecessary police or illegal procedure. We know the value of sharing information in order to help educate people about their legal rights.

This article will answer the following questions:

  • What is double jeopardy?
  • When can I use double jeopardy in my defense?
  • Will the courts automatically apply double jeopardy to my case?

Before we get started, if you are facing criminal charges and do not currently have legal representation, you are strongly advised to contact an experienced criminal attorney to help you with your defense.

Now, let's take a closer look at double jeopardy.

The Origin and History of The Double Jeopardy Clause

Double jeopardy is a clause of protection outlined in the Fifth Amendment of the Bill of Rights.

It's intended to protect you from excessive punishment or harassment in criminal cases, though it's application in court relies upon a solid defense strategy.

While our founding fathers originally wrote this legal clause for use in federal courts, the U.S. Supreme Court extended the rights outlined in the Fifth Amendment to state courts through the Fourteenth Amendment to the U.S. Constitution, thereby including all citizens under this protection.

Facing criminal charges in Wisconsin and need an attorney? Read:"When Should I Call a Criminal Lawyer in Wisconsin" by Stangl Law.

Definition of Double Jeopardy

Going through the stress of facing criminal charges in court can be challenging, to say the least.

Having qualified legal representation will certainly help alleviate some of the strain, but facing criminal charges of any kind is no picnic.

The framers of our country's laws found the idea of putting someone through this process more than once for the same offense to be unfairly taxing psychologically, emotionally, financially and physically. In line with that belief, The Fifth Amendment was written with the intention of protecting you from such harassment.

As it is written in Amendment V to the U.S. Constitution, no citizen shall "be subject for the same offense to be twice put in jeopardy of life or limb." In other words, you cannot be tried (and punished) for the same crime twice under the same set of evidence or facts.

Be advised, however: this seemingly simple rule can become quite complicated once you get to court, which is why it is important you have competent legal counsel.

Applying Double Jeopardy

The concept of the Double Jeopardy Clause aims to provide you with protection from the following:

  1. Being retried for a crime for which you have already been acquitted, or found not guilty
  2. Being charged with a second prosecution for the same offense after a conviction
  3. Receiving multiple punishments for the same offense

If you believe any of these descriptions sound like your case, contact a proven Wisconsin attorney to learn if your case qualifies for the protection of double jeopardy.

Example Of Double Jeopardy

To better understand the concept of double jeopardy, consider the controversial example of the state of California's criminal case against O.J. Simpson for the 1994 murders of Nicole Brown Simpson and Ronald Goldman.

Despite the defendant's history of domestic abuse allegations, infamous white Bronco chase, attempt to flea and pair of gloves with blood samples from the victims and himself, the jury did not find sufficient evidence to convict Mr. Simpson of the crimes and acquitted him of the charges in 1995.

The absence of the murder weapon certainly complicated the prosecution's pursuit of a conviction.

In March of 2016, a buck knife found on O.J. Simpson's former property surfaced and was tested by law enforcement for DNA evidence belonging to either victim, Nicole Brown Simpson or Ronald Goldman. Many believed this could be the missing murder weapon from the 1994 double homicide. However, no DNA evidence was ultimately found on the knife.

Even if testing had proven this knife to be the 1994 murder weapon, the Double Jeopardy Clause would have protected O.J. Simpson from being retried for the murders, as he was already tried and acquitted in 1995.

Stangl Law cares about protecting your constitutional rights and has spent over 20 years working to do just that for clients in court.

Does Double Jeopardy Apply To Civil Cases?

Double jeopardy is reserved for criminal cases only.

Sticking with the O.J. Simpson example: after he was cleared of murder charges, the families of Ronald Goldman and Nicole Brown Simpson took Mr. Simpson to civil court in 1996 to sue for damages.

Since Double Jeopardy does not apply to civil proceedings, the families were able to pursue their cases against Mr. Simpson and ultimately won. As a result, Ronald Goldman's family won $8.3 million in compensatory damages and the two families shared an award of $25 million in punitive damages in this civil trial against Mr. Simpson.

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Using Double Jeopardy In Court Can Be Complicated

While it is tempting to think every prosecutor, judge and jury will keep double jeopardy paramount in their consideration of your case, you cannot assume that will happen.

The jeopardy clause can serve as a shield for you in your criminal defense, but you will need a proven attorney to successfully convince the court to allow for its use.

Various factors (appeals, jury trials, boycotts of the prosecution) can impact your ability to rely on the protection of The Double Jeopardy Clause.

Enlist the help of an experienced and knowledgeable attorney to lead your criminal defense for your best chances of successfully navigating the complexities of the courts in order to gain application of double jeopardy protection to your case, should it be relevant.

Can Double Jeopardy Apply to Appeals?

The very nature of a criminal appeal makes way for the potential application of double jeopardy, depending on the situation.

During the appeal process, the role of the appellate court is to determine whether or not your particular case merits re-prosecution or if additional sentencing is appropriate, depending on the specific circumstances of your case.

Both of these determinations are at the core of the intention of double jeopardy protection.

Contact an impactful attorney who will help to protect you from being twice-bitten by the jaws of criminal prosecution.

To learn more about the appeal process, read the article, "How to Appeal a Criminal Conviction in Wisconsin" from Stangl Law.

When Can't Double Jeopardy Be Used?

While one intention of the Double Jeopardy Clause is to protect you from being tried for the same criminal offense more than once, the courts believe they can still seek to review your sentence or adjust the length of a previous sentence when rehearing your case at an appeal.

Since jeopardy—or risk of guilt (and punishment)—is inherently present during a conviction, double jeopardy protection will not apply unless there is the possibility of a guilty verdict. If something happened during your previous trial to remove the risk of being found guilty, such as a mistrial, the danger of being found guilty no longer exists in relation to those charges. Therefore, you could not apply double jeopardy.

The best way to determine if the Double Jeopardy Clause can be used to help protect you against criminal charges you may be facing in the state of Wisconsin, is to contact an attorney with a proven record of criminal defense success.

Learn if Double Jeopardy Applies to Your Case

Madison attorney, Patrick J. Stangl, is happy to offer a FREE 15-minute consultation at no obligation to you.

If you are currently facing criminal charges, take advantage of this opportunity today.  

Topics: Other Criminal Charges



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