I recently taught a class of law students about criminal pleadings. We discussed proper pleadings and defective pleadings, and the State’s ability to bring new charges against a defendant after a case is dismissed due to a fatal defect in the pleading. It was an interesting conversation, and it prompted me to look into the matter a bit more. This post summarizes the law. Defects discovered before jeopardy attaches. Obviously, if a defect is discovered before jeopardy attaches, there’s no double jeopardy problem with dismissing the case and re-charging the defendant. Defects discovered after jeopardy attaches. Even after jeopardy has attached, when a criminal charge is dismissed due to a fatal defect in the charging document, double jeopardy does not prevent further prosecution of the defendant for the same conduct under a proper charging document. I sometimes explain this by saying that the defendant was never really in jeopardy the first time due to the defect, but various authorities put the point more precisely: As a general rule, in order that jeopardy may attach, there must be a valid indictment, information, or complaint. Thus, where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put the accused in jeopardy and bar another prosecution. Consequently, a plea of former jeopardy is insufficient where based on a former trial under a fatally defective indictment. 22 C.J.S. Criminal Law § 277 (updated 2015) (footnotes omitted). See [...]
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