Double Jeopardy in WI: Can You Be Tried Twice for the Same Crime?

One of the most common fears people have after being charged with a crime is whether the government can try again if the case doesn’t go the way prosecutors planned. The good news is that both the U.S. Constitution and Wisconsin law provide protections against this through the principle known as double jeopardy.

Understanding how double jeopardy works in Wisconsin can help you better protect your rights and recognize when and why legal representation is important.

The double jeopardy clause of the U.S. and Wisconsin Constitutions prohibits being tried twice for the same crime. The clause provides three broad protections:

• protection against a second prosecution for the same offense after acquittal;

• protection against a second prosecution for the same offense after conviction;

• protection against multiple punishments for the same offense.

If you were found not guilty of First Degree Homicide, for example, you could not be subsequently charged for the same or a different homicide offense based on the death of one person.  

Double jeopardy protections only begin once jeopardy “attaches,” or comes into effect.  In Wisconsin, jeopardy typically attaches:

• In a jury trial: when the jury is sworn in.

• In a bench trial: when the first witness is sworn in.

• After a guilty plea: once the court accepts the plea.

A second prosecution may be allowed under certain circumstances such as when a mistrial is declared that is not caused by the prosecutor; when the case has been appealed and remanded for a new trial; and when the subsequent charge is not the “same offense.”

Whether a subsequent charge is the “same offense” or not is often the source of litigation. Over the last several decades, the definition of “same offense” has become much harder to meet. There are two primary reasons.  

The first is the 1932 U.S. Supreme Court decision in Blockburger v. United States. This case redefined “same offense” from offenses arising from a common set of facts to a strict elements test. Even if two criminal offenses have nearly all the same facts in common, if one additional fact that must be proven on one charge differs from the other, then they are considered separate offenses, and an acquittal or conviction on one does not prevent a second prosecution on the other. There are exceptions to this, such as when one offense is a lesser included of another. For example, you cannot be convicted of both possession of marijuana and delivery of marijuana from the same incident, since you cannot deliver marijuana without possessing it. Lesser included offenses can also be defined by state statute. All homicides are statutorily deemed as lesser included offenses of each other, so you can’t be convicted of more than one homicide charge for the death of one person.  

The second is that at the time of the Blockburger decision, the impact of the new elements tests was much less pronounced because the number of criminal offenses on the books was far less. However, there are now exponentially more crimes. It’s common to see a single incident that used to be charged as a single robbery, for example, now charged as half-a-dozen offenses. Instead of a single robbery count, there may be firearm related charges; battery; endangering safety; false imprisonment; disorderly conduct, and so on. Even if you were acquitted of the robbery, the State may not be prevented from charging you again with some of these other offenses in a subsequent prosecution. A well-known example is the 1994 case of Chris Jacobs, who was acquitted of murdering five members of the Kunz family. After the verdict, the State filed new charges against Jacobs for kidnapping and falsely imprisoning one of the five victims, as there was evidence one of the victims had been moved. Jacob’s double jeopardy argument was rejected because at least one of the facts that had to be proven for kidnapping differed from those for homicide.  

Double jeopardy issues become even more complicated when dealing with on-going offenses such as embezzling, racketeering, and conspiracies.

Wisconsin’s OWI laws can raise unique double jeopardy questions. A first-offense OWI is a civil forfeiture, as are refusal related proceedings, and is therefore not subject to double jeopardy at all. The multitude of OWI related offenses which include an additional element, such as causing injury, may constitute a separate offense altogether, further increasing the risk of subsequent prosecutions.

A lawyer skilled in the intricacies of double jeopardy law is a must. Modern double jeopardy law is complex, and the pitfalls are many. Especially in the case of plea bargains, which is how most cases are concluded, a multitude of strategic choices are possible to minimize the risk of successive prosecutions: the choice of which charge to enter a plea to; whether to have read-ins (charges you are not convicted of but are “read-in” for sentencing purposes); setting the time-frame of the offense; and in some cases, an explicit agreement with the prosecutor that no other offenses will be charged under a certain set of facts.  

Double jeopardy law can be complicated and often depends on precise details about timing, charges, and prior court rulings. If you are facing criminal charges or believe the state may be overstepping its authority, speaking with a knowledgeable Wisconsin criminal defense attorney can make all the difference.

Hiring Nelson Defense Group provides you with a team of experienced criminal defense attorneys with decades of experience. We are here to understand the unique details of your experience, understanding that outcomes can affect every facet of your life. When you hire us, we will do everything in our power to understand your situation, protect your constitutional rights, and ensure the state plays by the rules.

Written by Liesl Nelson and Steve Miller, Attorneys at Nelson Defense Group