Tennessee Criminal Lawyer Blog

The Constitution grants many different rights to criminal defendants with one of the most important being protection from “double jeopardy,” which is being tried twice for the same offense. This protects defendants by preventing them from being found not guilty of an offense by a jury of their peers and then being put right back to trial for the same offense in front of a different jury. This right has also been interpreted as protecting defendants from being convicted of two different criminal offenses for the exact same conduct by the state or federal government. However, it is of vital importance to note that the double jeopardy principle does not protect a defendant from being prosecuted by both the state and the federal government for the same offense.

To provide an example, if a state and the federal government have identical bank fraud statutes and a defendant commits an act of bank fraud that fits the elements of both statutes then there is nothing in the Constitution that prevents the defendant from being tried by both the state and federal government for the offense. In fact the state may wait and see if the federal government pursues the case and obtains a conviction before deciding to bring charges itself, and vice-versa. The two governments may also cooperate and coordinate their investigations.

The reason this is allowed is the principle of dual sovereignty. Simply put, while the Constitution limits one government’s ability to try a defendant twice for the same offense, it cannot limit the state or federal government from enforcing its own laws where such enforcement is appropriate. Since the state and federal governments are two completely separate entities with their own sources of power and sets of rules, there is nothing unconstitutional about both of them choosing to enforce those laws even if they know the other governmental entity is doing the same. Facing charges for the same offense from two different prosecutors can be an extremely trying experience. Defendants who are facing such an ordeal should consult an experienced criminal defense attorney who can keep them abreast of what is happening with regard to all of their charges and help the defendant work toward a fair resolution of his or her case.