How the Double Jeopardy Clause Works to Defend You and Your Rights!

How the Double Jeopardy Clause Works to Defend You and Your Rights!

By Marc A. Scaringi, Esq.

We hear about double jeopardy watching Law and Order and other shows about crime and justice, but many do not know how it works in the real world. The Pennsylvania Superior Court has recently issued a decision showing us how. It applied double jeopardy to bar the retrial of an Allegheny County man on charges involving illegal possession of a firearm. Why? Prosecutorial misconduct.

Here’s what happened. The defense identified a person who would testify at trial in support of the defendant’s good character. This is called a character witness. The night before the character witness was to testify, the prosecutor called her and had a telephone conversation with her. After that call, the witness made a voice recording explaining that she felt threatened by the prosecutor and would not be coming into court to testify. She emailed her voice recording to the Judge. The Judge listened to the voice recording and declared a mistrial on the grounds of prosecutorial misconduct. And then following two subsequent hearings, the court dismissed the case with prejudice, on those same grounds. This meant the case could not be re-filed and the defendant was, as they say, Scot-Free. The Commonwealth appealed claiming there was no prosecutorial misconduct and as such it should be allowed to retry the case.

The law of Pennsylvania is this:

If the prosecution engages in certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial. Article I, § 10, which our Supreme Court has construed more broadly than its federal counterpart, bars retrial not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.

The prosecutor claimed the witness immediately informed him that she would not testify because she could not miss work and that he then simply had a conversation with her during which he disclosed the defendant’s prior record of violent crimes, that the defendant is the most vicious man he’s ever prosecuted and that he was aware of many details about her life (he had listened to the conversations between the defendant and this defense witness which were made through the prison telephone; this is permissible under the law).

The trial court judge was enraged by the prosecutor’s behavior and even banned him from his courtroom. The Pennsylvania Superior Court agreed with the trial court and that the prosecutor’s statements placed the witness in fear for her own safety and for that of her family and as such the prosecutor’s actions were intentional acts of prosecutorial overreaching implicating double jeopardy protection.

There is a dissent to this Superior Court panel decision remonstrating the Superior Court majority and the trial court for focusing on the witnesses’ perception of the phone call instead of the prosecutor’s intent, as the law requires.

In any event, this case is an example of how double jeopardy can work in real life to bar a second prosecution when the court finds that a prosecutor intentionally conducts himself in such a way that denies the defendant a fair trial.

The lesson: your constitutional rights are important and can be used to defend yourself and your freedom in court. If you, a friend or a loved one is currently dealing with criminal investigations or charges, feel free to contact one of Scaringi Law’s experienced criminal defense attorneys at 717-657-7770 or at to learn how we can defend you and your rights.


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