I’ll Take Constitutional Law for $1000, Alex.

Answer: This clause of the federal and Nebraska Constitutions protects a defendant against three separate abuses:

  1. A second prosecution for the same offense after acquittal;
  2. A second prosecution for the same offense after conviction; and
  3. Multiple punishments for the same offense.

Question: What is the Double Jeopardy Clause?

In the simplest of examples, the Double Jeopardy clause of the Nebraska and federal Constitutions is easy to understand and apply. For example, if a defendant is acquitted of assault after a trial, the State cannot re-file the assault charge against the Defendant, and take another shot at convicting him or her. Nor can the State re-file the charge against a defendant who was convicted at a trial.

Seems simple, right? Of course, were it that simple, I would not be writing about it today.

Believe it or not, it is quite possible to be prosecuted, and punished twice, for the same crime. It is because of the theory of “Dual Sovereignty”. Under the theory of Dual Sovereignty, you can be prosecuted by both the Federal government, and a State government.

For example, if you are arrested for trafficking marijuana in Nebraska, the State of Nebraska can prosecute you for violating the Nebraska controlled substances act. However, because marijuana is also illegal under Federal law, the Federal government can also prosecute you for the same crime. You can thus be tried, convicted, and sentenced twice for the same crime. While this seems to violate many notions of justice and fair play, it is, in fact, the law.

Drug trafficking cases bring up another question about Double Jeopardy, that is, because drug trafficking often involves crossing state lines, can a defendant be prosecuted by multiple States for one crime of drug trafficking?

Under Dual Sovereignty, the answer is “yes”. For example, if a defendant were to have driven a load of marijuana from Colorado into Nebraska, into Iowa, and into Illinois, the defendant could be prosecuted 5 times for this offense. While selling retail marijuana is legal in Colorado to a degree, it cannot be trafficked out of the state. Further, marijuana is still illegal in Nebraska, Iowa, Illinois, and on the federal level. Each jurisdiction could bring its own case against the defendant.

It is not likely that each county within each state could bring its own prosecution, because even though prosecutions are generally handled by and in the county in which the crime occurred, charges are filed in the name of, and on behalf of, the State in which the crime occurred.

Fortunately, this scenario does not come up very often. Even prosecutors realize there is little point in doubling up the charges and/or punishment against a defendant.

If you have been charged with a crime, or even if you are simply in a situation where the police want to speak with you, it is very important that you contact the Berry Law. The criminal defense attorneys at the Berry Law are experienced, and aggressive with the government. In many cases, clients who have followed the advice of the Berry Law attorneys have avoided being arrested, or even having any further contact with law enforcement at all. While every case is different, contacting the Berry Law when you might be in trouble may be the key to keeping you out of formal legal trouble.

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