Justice, Twice Served? Navigating Military Double Jeopardy

Cuffs on locked book

Double jeopardy is a principle in criminal law that prohibits a person from being tried twice for the same crime. This principle is based on the idea that an individual should not be made to face the uncertainty and stress of a criminal trial more than once for the same offense.

But does this apply in the context of military law?

This article examines how double jeopardy principles apply to members of the armed forces and discusses some of the challenges and complexities that can arise when trying to apply these principles in a military setting. The military criminal defense lawyers at Griffin Law Defense explain more below.

Double Jeopardy in Civilian and Military Law

In civilian law, the Fifth Amendment to the United States Constitution establishes the principle of double jeopardy. This amendment states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This means that if a person is tried for a crime by a civilian court, they cannot be tried again for the same offense.

In military law, the principle of double jeopardy is established by Article 44 of the Uniform Code of Military Justice (UCMJ). This article states that "a person may not be tried a second time for the same offense if the first trial resulted in an acquittal, conviction, or dismissal." This means that if a member of the military is tried for a crime by a court-martial or other military tribunal, they cannot be tried again for the same offense.

What Are Some Exceptions to the Double Jeopardy Rule for Military Members?

There are a few exceptions to the double jeopardy rule for military members. These include:

- If a service member waives their right to double jeopardy as part of a plea agreement in a court-martial.

- If a service member fails to file an application that allows them to dismiss criminal charges that fall under the double jeopardy category.

- If a service member is tried in both a military court and a state civilian court for the same offense, they could face double jeopardy. This is because the Separate Sovereignty Doctrine allows a person to be tried by both a federal and a state court for the same offense.

- If a service member’s case is dismissed from a court martial due to a lack of jurisdiction, the defendant can be retried for the offense if the jurisdictional error in that court-martial case is fixed.

These exceptions to the double jeopardy rule allow for flexibility in the military justice system while still protecting service members' rights.

Strategies for Navigating Double Jeopardy in Military Cases

While there are several strategies for navigating double jeopardy in military cases, the most important one is to work with a military law attorney who has experience dealing with these issues. Criminal liability is something to be managed carefully, especially when you are exposed to risk of prosecution by the civilians and military authorities.

For example, an attorney may advise a service member on the potential implications of accepting a plea agreement or may assist in challenging a previous administrative punishment in order to avoid double jeopardy. Additionally, an attorney can provide representation in court-martial proceedings and can help to ensure that the service member receives a fair trial.

Working with a military criminal defense attorney at Griffin Law Defense can provide valuable support and guidance for service members facing legal issues related to double jeopardy.

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