What Is The Georgia Double Jeopardy Law?

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If you’re facing criminal charges in Georgia, you need to know about double jeopardy laws. There are laws that protect you from the harassment of facing criminal charges multiple times for the same conduct. Identifying what double jeopardy is and how to respond to it is an important part of any criminal defense. Our attorneys explain.

What is the law for double jeopardy in Georgia?

The Georgia double jeopardy law is O.C.G.A. § 16-1-8. A person may not be prosecuted for a crime in certain circumstances:

  1. The person was formerly prosecuted for the same crime based on the same material facts. The first prosecution must have resulted in:
  • Conviction
  • Acquittal, or
  • Improper termination after the jury or first witness is sworn
  1. The crime could have been charged or convicted in the previous proceeding
  2. The crime involves the same conduct
  3. The same conduct was previously prosecuted in United States federal court, and there was a conviction or acquittal

There are a few exceptions to these rules, including situations where the first case was dismissed for lack of jurisdiction or termination was not improper.

In addition, to the State of Georgia double jeopardy law, the Fifth Amendment to the United States Constitution applies in Georgia. It prohibits the state from subjecting a person to trial twice for the same offense.

What are some circumstances where double jeopardy may occur?

When a defendant is fighting against criminal charges, double jeopardy is an important consideration to be aware of. Each case should be examined to ensure that double jeopardy is not present. A defendant should look for:

  • Another round of charges after acquittal on the same charges
  • Prosecution in state court after resolution of the charges in federal court
  • Charges in two separate jurisdictions for the same conduct (it may be possible to face charges in two different states)
  • Multiple convictions for lesser-included offenses

Is there double jeopardy after a hung jury in Georgia?

Georgia’s law creates an exception to the double jeopardy rule in cases where the jury is unable to reach a verdict. If the jury is unable to agree on a verdict, or if a juror makes false statements during voir dire that prevent a fair trial, the case may be retried.

O.C.G.A. § 16-1-7 – Multiple Prosecutions for the Same Conduct

In the context of double jeopardy laws in Georgia, O.C.G.A. § 16-1-7 is an important law to be aware of. It addresses situations where someone’s conduct may be more than one crime. If one crime is included in the other, or if the only differences are the prohibition of the kind of conduct and the specific instance of conduct, the defendant can only be convicted of one crime. 

The prosecutor must charge all the crimes that arise from the same conduct at the same time. The court may order separate trials under O.C.G.A. § 16-1-7(c) if it is in the interests of justice.

Does double jeopardy in Georgia prohibit charging lesser included offenses?

The prosecution can charge lesser included offenses. However, the defendant can’t be convicted of both crimes. For example, a defendant may be charged with murder. Voluntary manslaughter may be the lesser-included offense. The defendant may be convicted of either charge but not both. O.C.G.A. § 16-1-6 allows for conviction of a lesser included offense when it involves the same proofs but less elements or less of a culpable mental state, or if the lesser charge involves less risk of injury or less culpability of the defendant.

Determining whether two convictions are an impermissible double jeopardy violation can be tricky. For example, in Nix v. State, 280 Ga. 141 (2006), the court said a defendant could not be sentenced for both malice and felony murder. Similarly, in Mackey v. State, 235 Ga. App. 509 (1998), the court said that a conviction for both rape and child molestation was improper. On the other hand, Georgia courts have upheld convictions for aggravated assault and rape (Taylor v. State, 177 Ga. App. 624 (1986)) and marijuana and possession of marijuana (Kinchen v. State, 265 Ga. App. 474 (2004)).

Attorneys for Double Jeopardy Criminal Defense

Do you have questions about your criminal case? Are you wondering if double jeopardy applies? Our criminal defense attorneys can help you fight back. Contact us today for a free consultation.

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