At the start of a criminal investigation, one of the biggest questions is whether the case will be prosecuted by state or federal authorities. This is not always clear from the outset. One of the surprises for most clients is the fact that many types of alleged criminal conduct can be prosecuted under both state and federal law. Perhaps more surprising is the fact that a person can be prosecuted by both state and federal authorities, at the same time, for the same alleged conduct. Although it would seem to be a clear case of double jeopardy, it is not.
A defendant can be charged in both state and federal court. The state and federal government may separately prosecute an individual, or entity, when the alleged conduct violates a particular law within the respective jurisdiction. The dual prosecution is permitted pursuant to the Dual Sovereignty Doctrine of the Constitution.
The Fifth Amendment Right against Double Jeopardy
Although the Double Jeopardy Clause of the Fifth Amendment states that a person cannot be prosecuted twice for the same offense, the Dual Sovereignty Doctrine is an exception to the Double Jeopardy Clause. If a crime is allegedly committed in each individual jurisdiction (state/state and/or state/federal) a person or entity can be charged or indicted within each respective jurisdiction.
Although it is often the case that criminal conduct can be prosecuted in a number of jurisdictions, it is common that a singular jurisdiction takes the lead in the matter and prosecutes the case. This is done for variety of reasons, but is always a case specific inquiry.
Jurisdictional issues are an important consideration to the defense of any allegation in the criminal justice system. The penalties can vary widely from one jurisdiction to another, even though the proscribed conduct is nearly identical within the statutes.
If you have a question regarding double jeopardy, or if you are facing criminal charges in federal or state court, please do not hesitate to contact Attorney Ron Frey, the firm's internet crime lawyer, for a consultation.