http://IllinoisCaseLaw.com/more-on-double-jeopardy-definition/

Today, I want to talk more about the double jeopardy definition. In the last show we discussed a case that involved double jeopardy attaching (or not attaching) at  sentencing hearing. However, some ideas on this topic didn’t get flushed out.

In the last show we asked: “When does double jeopardy attach during a sentencing hearing?”

If you recall, we were talking about a defendant who was charged with a misdemeanor DUI. SeePeople v. Guillen, 2014 IL App (2d) 131216 (11/25/2014).

Defendant had pled guilty to the charge. The judge admonished him. Then, at the very last moment right before the judge sentenced Defendant the State moved for a dismissal.

The judge stopped the hearing and granted the motion for the dismissal.

The appellate court ruled that jeopardy had not attached because the judge did not “accept” the Defendant's guilty plea. Thus, the State had the right to charge Defendant with a felony DUI.

A good double jeopardy definition explains that this is the legal principle that prevents against multiple prosecutions. See Episode 040.

In the last podcast I did not do a good job of pointing out that had the court found that jeopardy had attached to defendant in the plea hearing the State would have been prevented from proceeding with any type of charge against the Defendant.

The felony charge would go away, but so would any misdemeanor charge.

The State would not have been allowed to reinstate the original misdemeanor charge.

Why do we even have a rule against double jeopardy? Why does this rule exist?

This question is essentially asking for a double jeopardy definition.

The rule is designed to do two things. These things can be thought of the different sides of the same coin.

The rule against double jeopardy -

[bullet points]Acts as a Restraint on the Prosecution

Protects a Defendant

The prosecution is prevented from abusing their authority and limits overreach.

The accused is protected from abuse from the procession and from repeated prolonged prosecutions.

Prosecution (Prevent Overreach, Abuse)

So if we believe in the principles that we want to restrain the prosecution from unfettered authority to bring charges and offer an accused some protection against prosecutorial abuse then we have to say “jeopardy” attaches sometime during a prosecution.

However, if we say that jeopardy attaches only after an actual verdict of guilt then that would mean the prosecution would be allowed to bring charges against defendant and dismiss at any time before an actual verdict is reached.

This would mean the prosecution could start a trial and dismiss before the the verdict if they didn’t like how their witnesses testified.

This would be allowing the very kind of prosecutorial abuse say we want to prevent. This would offer the accused no protection at all.

Thus, we say that “jeopardy” has to attach some time before a verdict.

Exactly where the line is drawn in a certain sense is arbitrary.

The line just has to be drawn somewhere.

However, we don’t want to the draw the line too soon in the prosecution. We do want the State to have some flexibility in bringing and dismissing charges as the facts, witnesses, and evidence is developed.

Jeopardy to Soon

The farther down the jeopardy line is moved, the less flexibility the State would have to dismiss and recharge. It is easy to imagine a rule that says that “jeopardy” attaches after the mere bringing of charges.

This essentially would rob the state of any flexibility in bringing and dismissing charges against an accused. This kind of super Defendant protection would come at a high price of the prosecution.

The rule against double jeopardy at its core is a compromise between giving the prosecution some charging flexibility and protecting the Defendant from overreach ana abuse.