Double Jeopardy

You’ve probably heard of the concept of double jeopardy. The phrase in its most prevalent context refers to the constitutional guarantee that no person will be put twice in jeopardy of life or limb for the same offense. The common example given in explanation of the phrase is that if a defendant is found not guilty of murder, then the state can’t come back the next day and make him go through trial again just because they didn’t prove their case. The guarantee makes a criminal trial a one-shot deal, and missed objections or unheard arguments are considered waived once their appropriate time passes. This is a huge reason why it is impossible to overstate the importance of having skilled and experienced representation in defending against a charge of any crime.

Double jeopardy in the context of defenses to antitrust crimes means something slightly different. Given the constitutional decree, it is highly unlikely that the prosecutor tried to convict the defendant for an antitrust violation and failed, only to re-file the same charges. Thus, double jeopardy in that sense is of little avail as an antitrust defense. However, there remains the firmly-rooted concept that the same crime will not be tried twice. This can be highly relevant to a defendant accused in a scheme involving transactions in multiple states.

Assume, for example, that a distributor has developed and implemented a nationwide scheme to maintain the price of his product. As part of the scheme, he has his Chicago office collude with willing competitors in the area. He gives the same order to his Los Angeles division manager. The scheme is detected and he is indicted for one count of conspiracy to violate antitrust laws and is convicted in federal court in Chicago. If the evidence established that the activities that occurred in both cities were part of a single nationwide conspiracy, then the defendant cannot be charged with conspiracy to violate antitrust laws again in Los Angeles; the nationwide conspiracy was a single crime which he has already been tried and convicted for, and he cannot be made to stand trial for the conspiracy again (even if the federal prosecutors never mentioned Los Angeles in the first indictment). Thus, in certain situations the defense of double jeopardy can prove successful.