Does Double Jeopardy Apply to Military Members?

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While military members follow a different set of rules than civilians, known as the Uniform Code of Military Justice (UCMJ), many of their rights remain the same. They are still subjected to and protected by civilian law. 

Fifth Amendment Protection

The Fifth Amendment states that “no person shall… be subject for the same offense to be twice put in jeopardy of life or limb.” Put simply, this means that no one may be tried for the same crime more than once. This is known as “double jeopardy.” Military members are still protected under the Fifth Amendment of the United States Constitution.

It’s important to note the differences regarding double jeopardy as it pertains to military service members. This begs the question of whether a military member who is arrested for breaking a civilian law can also be prosecuted by a military court. You may be surprised to learn that they can be prosecuted twice despite this law. 

Double Jeopardy Protection Does Not Apply to Multiple Court Systems

The right against double jeopardy does not apply to more than one court system. This can be seen between state and federal court, where a crime can be charged in federal court if the defendant is first acquitted at the state level. So, while it doesn’t apply between court systems, the protection of double jeopardy applies to repeated prosecution of a crime within the same jurisdiction and court system. 

Double jeopardy is defined in the UCMJ in Article 44: “No person may, without his consent, be tried a second time for the same offense.” Once evidence is presented in a court-martial the defendant receives this protection. The outcome of the case is irrelevant to whether or not the service member is tried again – they cannot be. 

Military Members Could Be Tried in Military and Civilian Courts

It’s important to differentiate between trial in civilian court and trial in a court-martial. Since military court is a different system from civilian court, the individual could be tried in both. Civilian court and military court are separately governed and therefore follow their own set of laws. However, when a service member is tried in both court systems, it is usually for a very serious crime, such as murder or rape. This also only commonly occurs when a military commander believes that the civilian court sentence wasn’t harsh enough. 

It’s also important to note that double jeopardy only applies to judicial criminal proceedings. If a military member receives a non-judicial punishment (NJP) for a minor offense under Article 15 of the UCMJ, they cannot again receive another MPJ for that same offense. If someone receives an administrative punishment, he or she could still face a court-martial later on for the same offense. Depending upon your prior administrative punishments, you may be able to successfully request that the criminal charges against you be dropped. Those who face an NJP are entitled to request a trial by court-martial instead. 

If a service member fails to file a timely motion to dismiss criminal charges because they should be barred by double jeopardy, he or she may waive his or her right of protection.

The Court-Martial Law Division of Aviso Law LLC Helps Military Members in Colorado Who Have Been Charged with a Crime

The U.S. Government has an interest in obtaining a conviction as soon as possible, as it does not wish to gain negative publicity about one of its service members. That is why it is so important to consult with a knowledgeable and experienced military attorney as soon as possible.

If you are a military service member and have been charged with a crime under the UCMJ, the Court-Martial Law Division of Aviso Law LLC can help. We proudly serve our military members, who sacrifice so much for our country. To learn more or to schedule a free consultation, contact us today!

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