The Michigan Constitution Podcast

Tony Snyder is a licensed attorney in the State of Michigan who offers a bi-monthly podcast on the Michigan Constitution. Here you will learn about each Article and its respective Sections, what they mean, and case law that has addressed how those provision are implemented in the day-to-day lives of citizens of Michigan.


episode 40: E-40: Double Jeopardy (Part 1)

Michigan Constitution/Article 1/Section 15: Double jeopardy; bailable offenses; commencement of trial if bail denied; bail hearing; effective date.

I bet you’ve never given this area of constitutional protection much thought. We “get it”, perhaps conceptually. But do you really understand what it means to be put TWICE in jeopardy? When does it attach? How does it get reviewed? When are you truly a “Free Person” and needn’t fear another governmental trial?

Double Jeopardy embodies three separate protections:

* It protects against a second prosecution for the same offense after acquittal;

* It protects against a second prosecution for the same offense after conviction; and

* It protects against multiple punishments for the same offense.

But those three protections are not where most of the litigation against Double Jeopardy allegations occurs. There is, arguably, a 4th protection against Double Jeopardy and that’s the prohibition of a retrial of a defendant after a mistrial occurs. But we’ll get into that later. So why? Why is this protection against Double Jeopardy so important, so vital, that we have it both in the US Constitution and the Michigan Constitution? Well, there are several reasons.

First, to reduce the chance of convicting innocent people. The theory here maintains, if this rule didn’t exist, the State of Michigan would be able to re-try a defendant until they presented just the right case to convince a jury of the Defendant’s guilt. Think of it like if you could re-take a math test over and over, until you Aced the exam. You know where you got things wrong, so when you retake the test, you have the benefit of knowing where you wrong answers were so that you could get them right the next time. A criminal trial is the same concept. We don’t want a County Prosecutor to have the ability to try you for a crime, be found innocent, thus giving the Prosecutor a second bite at the apple to try you again and strengthen the case where it may have lacked originally.

The second reason is to avoid harassing the Defendant. Crime trials are expensive to defend, stressful on the Defendant and his/her family and no Prosecutor should be allowed to repeatedly try the Defendant for an alleged crime

Lastly, we as a society want to ensure the certainty and finality of criminal litigation. When we have a guilty or not-guilty verdict, whichever the outcome may be, the Defendant should have the luxury of moving forward with their life, whether it be as a free person (thanks to a Not Guilty verdict) or in a jail/prison, because they were found Guilty. Regardless the jury decision, the Defendant should know their criminal case is done and over with.


 2021-08-01  27m