In this YouTube Hangout, San Diego criminal lawyer David Shapiro answers an online question about double jeopardy. If you have additional questions you may post them in the comments section below the video or visit him online at [ Ссылка ]

Phil – I was arrested for fraud. I believe I am innocent of the charges, and I refused to plead guilty. We had a trial, and it ended with a hung jury. I was really happy, because I thought that would be the end of it. Now I’m told the prosecutor wants to re-try me for the same offense. Isn’t that prohibited by double jeopardy?

Law Office of David P. Shapiro
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Transcript of content:
- We're with David Shapiro, David is a criminal defense lawyer in San Diego, California, and he's agreed to answer an online question. This question was specifically related to double jeopardy. So, David, let's get into the question. This question was from Phil, Phil said, "I was arrested for fraud, "I believe that I am innocent of all the charges "I refused to plead guilty. "We had a trial and it ended with a hung jury. "I was really happy because I thought "that would be the end of it. "Now I'm told the prosecutor wants "to retry me for the same offense. "Isn't that double jeopardy?"

- Phil, I wish I could tell you it was. It does not appear to be double jeopardy based on what you're telling me and the reason for it is this, you had a trial, you have a constitutional right to go to trial, you did. It seems like that was a good decision because the government was unable to prove their case beyond a reasonable doubt to all, assuming the case was in state court in California, all 12 jurors. So it resulted in a hung jury, and then, in all likelihood, the court declared what's known as a mistrial. Okay, now a hung jury could be a couple of different things. Now that doesn't necessarily mean it's double jeopardy. What a hung jury is, Phil, is when you need 12 jurors to be unanimously convict you on a count that you're charged with so if you're charged with a count, whatever, and it's 10 to two not guilty, unfortunately, you need all 12 to say not guilty in order to be acquitted. But, if it's 11 to one for guilty that doesn't mean you get convicted, either. It means the case results in a hung jury, the jury can not reach a unanimous verdict. And then it would be up to the prosecutor, in all likelihood the district attorney if this case was filed in state court to determine whether or not they are going to file charges against you again. Now, that's assuming the court, on it's own motion, did not dismiss the case at the end of the first trial. The judge can make that decision to dismiss the case at the end of the first trial, if he or she believes that no reasonable jury, even if we do this trail all over again, would be able to reach a unanimous verdict. So, if it's a situation, and I see this a lot, if it's seven to five guilty, we get up there as defense attorneys and we'll make an argument I'll say, listen, judge, this case is not gonna get any stronger for the prosecution. Even if we impanel an entirely new jury, and that's what we need to have at a new trial, the likelihood that we go from seven guilty to 12 guilty is minimal and you have to weigh the cost that it would cost the county, the state, the city, whatever the case may be, and the burden on the prosecution, the burden on the community to sit and hear this trial. So, there's all those factors that go into whether or not a court may dismiss a case. Prosecution also needs to decide whether or not they would dismiss the case, and that happens too sometimes, they believe, hey, we tried it, we gave it our best shot and we're not gonna go through this again and hopefully that's what they're thinking in your situation if they haven't already dismissed the case. But, double jeopardy would not attach in this instance because you've had the trial, the jury was unable to reach a verdict. Now, had you been acquitted, outright not guilty then double jeopardy would bar you from being retried on that charge where a jury reached a verdict. If there were multiple verdicts, like say, for example, the jury was hung on one count but acquitted you on another and they did a retrial on the one count where a jury couldn't make a decision you would be, they couldn't prosecute you again for what you were acquitted of so double jeopardy would step in there. But, unfortunately, it would not apply in your situation.

- Okay, excellent, thanks for your feedback and if you have additional questions for David just post them in the comments section below.

- My pleasure, good luck Phillip.

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