Jeopardy did not attach the first time.
http://faculty.ncwc.edu/toconnor/325/325lect07.htm
DOUBLE JEOPARDY & JURISDICTION
Welcome to the most complex and challenging area of criminal procedure. As Chief Justice Rehnquist has said: "the decisional law in the area of double jeopardy is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Who would have thought that so many problems would accrue from a simple little phrase in the 5th Amendment which reads: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The right to be free from double jeopardy was first made applicable to state proceedings in Benton v. Maryland 395 U.S. 784 (1969).
The term "jeopardy" refers to the "danger" of punishment which is ascribed to any individual brought to trial before a court of competent jurisdiction. Procedural matters prior to trial do not constitute jeopardy, and that's why it's said that jeopardy attaches, or may be asserted by the defendant, once a jury has been sworn in, or the first witness takes the stand, in any original prosecution resulting in any acquittal or conviction. Jeopardy also attaches to any plea of guilty (treated the same as conviction) even if later withdrawn. Jeopardy does not attach to any proceedings resulting in nolle prosequi, mistrial, hung jury, or termination for any other "legally sufficient" reason.
In terms of criminal process, the plea of double jeopardy is a valid defense response to a felony arraignment, and like the prosecutor's assertion of nolle prosequi (no prosecution), the claim of prior jeopardy must be made before a jury is impaneled and sworn in on a second prosecution; i.e., prior to commencement of the second trial. If the claim of double jeopardy is made after the trial begins, the rule of manifest necessity applies, making it a matter of discretion for the court, and any subsequent dismissal of the case or discharge of the jury must be treated as an acquittal.
The term "double jeopardy" refers to the "danger" of a second punishment whenever an individual is brought to trial again for the same crime (or a greater or lesser included crime). This means that there cannot be a second prosecution for the same criminal act (both in fact and in law) upon which a first prosecution was based. The accused must be released and the case dismissed. The challenge is determining what constitutes the "same" crime for double jeopardy purposes. Some of the simpler examples include:
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an acquittal or conviction for murder will bar any prosecution for manslaughter if based on the same facts (lesser included example)
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an acquittal or conviction for larceny-theft will bar any prosecution for robbery if based on the same facts (greater included example)
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an acquittal or conviction for burglary will bar any prosecution for robbery (even if the burglar woke up the sleeping couple and robbed them) unless there are distinct elements in one crime that are not included in the other (multiple criminal transaction example)
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an acquittal or conviction for R.I.C.O. will bar any prosecution for conspiracy or attempted R.I.C.O. (continuing crime example)
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an acquittal or conviction for battery will not bar any later prosecution for murder if the victims later dies as a result of injuries (separate and distinct new crime example)
It gets complicated when you consider the process of appeal. Under no circumstances can a prosecutor ever appeal a defendant's acquittal, but the prosecutor may appeal other decisions such as a judge's ruling to set aside a jury's guilty verdict or some ruling in a suppression hearing. These would be treated as appropriate for appellate review of judicial error, but even if the prosecutor wins an appeal on these collateral matters, the state still could not relitigate the case because of the collateral estoppel doctrine. This is the idea that once an issue has been determined in favor of the defendant at one trial, it cannot be reused by the prosecution in hopes of getting a more favorable outcome at a second trial. It's commonly referred to as the prosecution having only "one fair shot" at finding a defendant guilty. It's purpose is to prevent the state from using a first trial as a dry run for a second prosecution.
In the case of suppressed evidence where the suppression is overturned on appeal, it may be possible to retry the case with the unsuppressed evidence but only if it appears to form the basis of a separate and distinct new crime. Most courts have rejected the same transaction and same conduct tests in favor of the same evidence test (the Blockburger Test). As long as the same evidence is not being used again to focus on the same statutory elements of the charged offense, a second trial may proceed, but it would depend upon the nature of the previously suppressed evidence (whether it supported an intent or actus reus element of a related crime that the defendant was or was not charged with originally). The test is whether the new evidence supports distinct statutory elements, not distinct new crimes.
When the defense files an appeal, it's usually because they fought hard to get a complete acquittal, but something stuck, like a guilty verdict on a lesser included offense that was part of multiple charges or counts on the jury ballot. If they win their appeal, the state can then reprosecute them, if they want to, but only for the lesser included offense set aside on appeal, and certainly not for any of the original, more serious charges. For example, a jury acquits a murderer on everything but a related harassment charge, and the defense wins on appeal in overturning the conviction for harassment; the prosecution can retry the case, but only for harassment, not the murders.
Nothing in double jeopardy law prohibits simultaneous prosecution for the same offense in the courts of the federal government, criminal courts of another state, or civil courts of the same state. The only thing strictly prohibited is allowing a convicted juvenile to grow up enough to retry them for the same case as an adult in criminal court. The idea that double jeopardy protection does not apply to the laws of different jurisdictions is called the Dual Sovereignty Doctrine.
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