In 1999, while law school was but a twinkling in my eye, the movie Double Jeopardy was released. The premise was that a woman, wrongly convicted of her husband’s death, could, after being released, go and kill that husband without being prosecuted again. At the time, Slate magazine posted an article explaining that this logic was flawed, in that “double jeopardy can only be claimed when multiple prosecutions arise from a single criminal action. For example, a double jeopardy defense would certainly fail if a defendant claimed that he couldn't be prosecuted for a second assault on a victim just because he was convicted of assaulting her two years earlier.”
However, there are other exceptions to the double jeopardy protection of the 5th Amendment, which most Americans remain unaware of. For instance, the federal government and a state may both, separately, prosecute a defendant for the same crime.*fn1* A similar situation exists for those subject to the UCMJ. The court martial is considered, for double jeopardy purposes, analogous to a prosecution in federal district court.*fn2* Therefore, a soldier can be tried for the same crime in both a court martial and a state court.*fn3*
[I should pause here to say that I’m against double jeopardy. I understand the basic idea behind allowing both the state and federal governments to prosecute the same crime, but I think it is a legal fiction whose benefits are far outweighed by the risk of abuse. So I’m continuing this post with a goal of testing that belief.]
