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Double jeopardy is more complicated for service personnel

On Behalf of | Nov 10, 2022 | Military Law |

Because they are obliged to follow the Uniform Code of Military Justice (UCMJ) and standard laws that apply to everyone in the country, our service members face a more complicated criminal law system than the average U.S. resident. Thus, it is no surprise that the same holds when discussing the concept of double jeopardy, which refers to the legal principle that citizens cannot be charged twice for the same crime. There are, however, some critical distinctions, particularly concerning military law.

A common example is when the military and civil authorities want to press criminal charges for the same crime. They may both want to prosecute the accused, but what happens if the service member is acquitted after the first trial? One might assume that the military court could not prosecute if the civilian court cleared them, but that is not always the case.

When does it apply?

Service personnel enjoy double jeopardy protections under the UCMJ’s Article 44. These protections are utilized once evidence is presented for court-martial against the service member. In civilian courts, the protections begin when the jury is in place or (if there is no jury) it swears in the first witness. Once this happens, the service member has protection regardless of the outcome, even if it is a dismissal due to a lack of available witnesses or evidence.

When it does not

There are many criminal and civil laws, and double jeopardy only applies to criminal charges. If the actions result in a non-judicial punishment under Article 15, the service member may still face a court martial for the same event.

The two cases may impact each other

Even if double jeopardy does not apply, the service person can ask the military court to consider what happened in the civil court, such as non-judicial punishment like withholding pay to address damages. The service person can request the dismissal of the court-martial or mitigation of the sentence based on prior penalties for the same offense.

It’s in the best interests of military personnel facing charges, court-martial or other penalties to work with a military attorney dedicated to defending their clients. These legal professionals are uniquely qualified to represent clients potentially facing double jeopardy under these circumstances.