Double Jeopardy in Arizona

It is widely known that the U.S. Constitution’s 5th Amendment guarantees every person accused of a crime the right to be free of repeated attempts to convict. This guarantee against being twice placed in jeopardy is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056 (1969); State v. Ortiz, 120 Ariz. 384, 586 P.2d 633 (1978). But it’s not that simple in Arizona.

Just because a person isn’t convicted in the prosecution’s first shot does not mean that the prosecutor won’t take a second shot. Here is what the U.S. Supreme Court has said about the double jeopardy issue:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223 (1957).

Years later, the Court went on to say:

“…one of the principal threads making up the protection embodied in the double jeopardy clause is the right of the defendant to have his trial completed before the first jury empaneled to try him…”

Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 2088 (1982).

The Arizona Constitution has its own version of the double jeopardy clause. It says,

“No person shall . . . be twice put in jeopardy for the same offense.”

Art. 2, Sec. 10, Arizona Constitution.

But the real issue arises when a jury is empaneled in Arizona and the trial court declares a mistrial before the jury has a chance to deliver a verdict. With a mistrial, the prosecution must cease immediately.

So, a jury has been empaneled, the defendant has faced prosecution, and that prosecution has ended. Wouldn’t “double jeopardy” preclude a second or subsequent prosecution of the same defendant for the same crime in front of a new jury? Not always.

The Arizona Rules of Criminal Procedure allow a trial court to dismiss a case with prejudice, which means that the case can never be re-filed, nor can any further prosecution take place, against the same defendant for the same crime. The rule says,

“Dismissal of a prosecution shall be without prejudice to commencement of another prosecution, unless the court order finds that the interests of justice require that the dismissal be with prejudice.”

So in an Arizona jury trial, where a mistrial is declared, the trial court has to find that the interests of justice require such a dismissal in order for the defendant to be safe from another prosecution.

There are additional cases by the Arizona Supreme Court and Court of Appeals of Arizona that discuss how a prosecutor will not be precluded from taking a second shot at a defendant, even where the prosecutor was at fault in causing a mistrial, so long as the prosecutor did not knowingly engage in improper and prejudicial conduct indifferent to the fact that such conduct would likely result in a mistrial or dismissal.

Therefore, conflict exists between the double jeopardy clause, both the federal one and the Arizona one, and Arizona case law and a defendant’s due process rights. For now, the debate will rage on, as prosecutor’s take second, third, fourth, and fifth shots at the same person for the same crime, each case in front of a new jury and each case costing thousands of tax dollars. I’ll leave it at that.

How do you strike the balance between a person’s individual rights and society’s interests in prosecuting people accused of a crime?

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