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Double Jeopardy and the Military: What You Need to Know

Double jeopardy is a constitutional protection for criminal defendants that is deeply rooted in legal history. In its essence, it's designed to protect citizens from being charged (and punished) more than once for the same crime. However, there are important legal distinctions for the doctrine, especially when it comes to military personnel.

Service members already face a more complex criminal justicial system than the average citizen as they are subject not only to civilian criminal laws, but also to those in the Uniform Code of Military Justice (UCMJ). This can get complicated when both local authorities and the military want to bring criminal charges for the same crime or when the military seeks criminal prosecution after a service member has been acquitted in a civilian court. While at first glance, it would appear that service members are protected by double jeopardy from dual prosecutions, that’s not always the case, making it that much more important to understand the concept and what it means for you.

When Does Double Jeopardy Apply to Service Members?

Double jeopardy protections exist for service members under Article 44 of the UCMJ which prohibits a service member from "being tried a second time for the same offense." Under the UCMJ, these protections apply as soon as evidence is introduced in a court-martial against a service member, as opposed to civilian courts where it applies when a jury is empanelled and sworn. Once evidence is introduced, a service member cannot be tried again by the military for the same criminal offenses at hand, regardless of the outcome, which can include:

  • A finding of guilt;
  • An acquittal; or
  • A dismissal by the convening authority for lack of available witnesses or evidence before any findings are made.

While it's important to know when double jeopardy applies, it's even more important for service members to know when it does not.

Limitation to Criminal Proceedings

Double jeopardy only applies to judicial criminal proceedings and, therefore, would not apply to adverse administrative actions, such as non-judicial punishments under Article 15 of the UCMJ. So, a service member that is subject to non-judicial punishment (such as forfeiture of pay) can also subsequently face a court-martial for the same incident. However, even though double jeopardy does not apply, there are other protections for service members in that situation. For example, a service member can request that criminal charges in a court-martial be dismissed or mitigated based on a prior non-judicial punishment for the same offense.

The Court-Martial Lacks Jurisdiction

If a court-martial proceeding is terminated for lack of jurisdiction, the underlying charges can be brought again once the jurisdictional defect is corrected. An example of a jurisdictional defect would be if the charges were referred to a court-martial by someone who lacks the authority to do so.

Waiver

A service member can, even inadvertently, waive his or her double jeopardy protections. An example of this would be the failure to file a timely motion to dismiss criminal charges barred by double jeopardy.

Civilian Criminal Charges

A service member who faces trial in civilian criminal court, whether a state court or a foreign court, can also face trial in a court-martial for the same incident, even if he or she were acquitted in the civilian court. This is due to the doctrine of separate, or dual, sovereigns. Under this important limitation to the double jeopardy rule, the state or foreign government is seen as a different sovereign from the federal government and each sovereign has the right to enforce its own criminal laws.

In essence, the same criminal act can constitute two offenses, one against each sovereign. One area where this is often made apparent is when a service member is charged with a DUI by local authorities. For more information on this, see FindLaw's article, "Military DUI: Court Martial and Civilian Charges."

What Does this Mean for You?

Double jeopardy provides a strong defense for service members like you - when it applies. Because there are important exceptions in the military, it's important for you to know your rights and whether you risk waiving any protections that do apply.

If you're facing non-judicial punishment, for example, you have the right to demand trial by court-martial in lieu of non-judicial punishment. This may be a better option if you think you’ll face trial by court-martial anyway and want to avoid facing both administrative and judicial punishment.

As you can see, double jeopardy is a complicated concept especially for service members and especially when they’re facing criminal charges before civilian and military authorities. Because of this, if you’re facing any criminal charges (civilian or military), it’s critical that you speak with an attorney experienced in military law to guide you through the process.

Additional Resources

For more information on double jeopardy, including what constitutes the same crime and whether you can be charged with the same crime by two different states, see Findlaw's section on Trial Rights. For more information on criminal law in the military generally, see FindLaw’s section on Criminal Law.

Next Steps
Contact a qualified military law attorney to help
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