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Mark I. Cohen, ESQ. NYC Criminal Attorney

Can I Face Charges For The Same Crime In Both State Court And Federal Court?


While you may be familiar with the term “double jeopardy,” this doctrine is actually a bit more complex. Often, people assume that they cannot be charged and prosecuted in both a state court and federal court for the same offense because of the Double Jeopardy Clause. This is not entirely true. Suppose you were arrested, charged, and acquitted of drug possession, for instance, in New York. In such a case, the doctrine of double jeopardy prevents the state of New York from prosecuting you for this same offense in the future. However, the doctrine of double jeopardy generally does not prevent the federal government from prosecuting you in a federal court for that same offense in the future. So, yes, you can face charges for the same crime in both state and federal court. This is because of a concept known as “dual sovereignty.”

Double Jeopardy and Double Sovereignty

The Double Jeopardy Clause is found in the Fifth Amendment to the U.S. Constitution. According to the Fifth Amendment;

  1. a person cannot be prosecuted after an acquittal for the same offense,
  2. a person cannot face double convictions for the same crime, and
  3. a person cannot face multiple punishments for the same crime.

Most people understand the above, but most people don’t understand that the Double Jeopardy clause applies to prosecutions of the same offenses by the same states or governments. In the U.S., states are considered separate sovereign entities. The state and federal governments are also considered two separate sovereign entities. According to the dual sovereignty doctrine, more than one sovereignty can prosecute an individual if they break the laws of each sovereignty.

As already mentioned, if the state of New York prosecutes you and acquits you of a crime, the state cannot prosecute you for the same crime in the future. This rule also holds true in federal courts. If a federal court prosecutes you and acquits you, the court cannot prosecute you for the same crime in the future. However, you can be prosecuted in both a New York court and federal court for the same offense. So, if you have been acquitted of charges in New York, you can be charged and tried in a federal court for the same offense. The converse is also true. If you were tried and acquitted in a federal court, you could still be charged and tried for the same offense in a New York court. However, this is only possible if the crime you committed violates both state and federal laws.

Examples of common criminal activity that may allow a person to be charged in both state and federal courts include;

  • Weapons charges
  • Fraud charges
  • Drug trafficking
  • Child pornography

Other Situations Where Double Jeopardy Doesn’t Apply

There are several other situations where the double jeopardy concept does not apply. For example, a previous civil court proceeding cannot prevent a subsequent criminal prosecution that arises from the same events. Also, criminal proceedings that happen before trial don’t give rise to the double jeopardy defense.

Contact an NYC Criminal Defense Attorney

If you have questions about the legal concepts of double jeopardy and dual sovereignty or need legal representation, contact the skilled and dedicated NYC criminal defense attorney, Mark I. Cohen, Esq. at 212-732-0002.


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