As a Massachusetts criminal attorney, one of the most common questions asked is what does double jeopardy mean under the Constitution. When people first hear the phrase “double jeopardy,” the first thing that comes to mind is the movie featuring Tommy Lee Jones and Ashley Judd. In true Hollywood fashion, the highly entertaining movie substitutes criminal and constitutional law with thrilling scenes where Ashley Judd searches for the truth about her supposedly dead husband. Still, Hollywood falls short in explaining Double Jeopardy in its true legal form.

Double jeopardy is an important concept for any client to understand – particularly when your case mirrors the facts in Cruz vs. Commonwealth, decided on March 15, 2012. Cruz was indicted for trafficking cocaine in June 2007. In October of that same year, his defense counsel filed a request for discovery. Nearly three years later, on the second day of trial, his’ Massachusetts criminal attorney discovered that the Commonwealth had failed to supply the defense attorney with at least 500 pages of information obtained during the police investigation – essentially, violating the discovery order.

In such a situation, a judge can either grant a Continuance (allowing the defense attorney to review the documents), grant a Motion to Dismiss, or declare a Mistrial. Given the extensive nature of the documents withheld, a continuance did not appear to be feasible. The defendant’s criminal attorney moved for a dismissal of the case. He also objected to a mistrial because a mistrial would only prolong the already financial and emotional burden on the defendant.

The lawyer representing Cruz argued that because this case had already spent three years in discovery and motion practice, the discovery order violation was extreme. In addition, the documents were highly relevant and could have assisted the defendant’s case. Although the judge found that the Commonwealth violated the discovery order, the violation was not intentional and therefore a mistrial was declared.

The double jeopardy clause comes from the Fifth Amendment of the Constitution and is also found in Article 12 of the Massachusetts Declaration of Rights. It states that no person may be twice placed in jeopardy for the same criminal offense. In
Massachusetts, once a defendant is placed in jeopardy, a judge can declare a mistrial if it is manifestly necessary. The Commonwealth has the burden to prove that manifest necessity exists. For a judge to declare a mistrial over the defendant’s objection, the judge must consider the defendant’s right to a trial. In addition, the court must give the objecting defense attorney the opportunity to be heard and the judge must consider any alternatives to a mistrial.

The high profile perjury prosecution of Roger Clemens raised the issue of Double jeopardy recently. The trial of Roger Clemens raised the issue of double jeopardy where a mistrial was caused by conducted of the prosecutor in violating a pretrial ruling of the judge. The judge has ruled that a second trial would not violate the Double Jeopardy Clause and the retrial is scheduled to resume; should Clemens be convicted, the Double Jeopardy issue would be raised on appeal.

Any case that ends in a mistrial could raise potential issues of Double Jeopardy on a retrial. A Massachusetts criminal lawyer handling criminal cases can arise someone of the Double Jeopardy consideration in their case and explain this difficult area of Constitutional law. You can call Attorney DelSignore to ask any questions regarding Constitutional and criminal law in Massachusetts by calling 781-686-5924.