Difference Between State and Federal Courts Part 1: Can I Be Tried for the Same Crime in Both State and Federal Court?

Barry M. Wax

When you are charged with a crime, the jurisdiction of your court case is determined based on whether the offense(s) in question violate state or federal crimes. If you are charged in state court, the case will be styled as “The State of Florida v. (Name of Defendant)” If you are charged in federal court, your case will be styled as “The United States of America v. (Name of Defendant).”

Double jeopardy laws prevent a person from being tried twice for the same crime in the same court. Where things become more complicated is when the crime violates both state AND federal laws. This was the case in the recent murder of Ahmaud Arbery and the trial of the three men (Travis McMichael, Greg McMichael, and William Bryan) accused of killing Ahmaud Arbery in Georgia. The three men were tried and convicted in both state and federal court. The Dual Sovereignty laws allow different courts to try you for the same offenses.

To better explain the relevant scenarios, it’s important to first understand the terms “double jeopardy” and “dual sovereignty.”

Double jeopardy

Double jeopardy is found in the 5th Amendment of the United States Constitution, “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” It is a right which prevents anyone from being tried for the same offense more than once in one court. This means the prosecution can’t put someone on trial a second time if a jury returned a verdict of not guilty.

It’s a valuable protection, but what most people don’t realize is that double jeopardy does not prevent state and federal courts from charging you separately based upon the same event when you violate laws at each level. It also doesn’t prevent your case from being transferred from state to federal courts while it is pending, or vice versa.

Dual sovereignty

Dual sovereignty recognizes that a state and the United States are “dual sovereigns.” That means they are separate government entities and so allow someone accused of a crime to be tried twice for the same crime as long as the trials take place separately in state and federal court. The State of Florida (and the other 49 states too) and the United States are considered two separate sovereigns.

This doesn’t mean your case will automatically be tried in both courts if both state and federal laws or violated. In fact, it’s extremely rare for both courts to try the same charges for a handful of reasons. We’ll go through those decisions below.

When you will be tried in state court

To be tried in state court, you must be accused of violations of state law. When you violate both state and federal law, your case may remain in state court if the courts determine the state has the resources, capacity, and infrastructure to handle your case. In-state court, certain crimes may have more lenient punishments and low-level first-time offenders often will be tried in state court even if federal law is also allegedly violated.

The prosecution may also push to keep your case in state court when they feel they’ve built a strong enough case to convict you in state court without elevating it to federal courts which will have different standards. This is part of prosecutorial discretion.

When you will be tried in federal court

When you’re determined to have violated federal law, your case may be handled in federal court. Cases at the state court level are often elevated to federal court when it’s determined the increased resources and capacity at the federal level would better serve the prosecution and/or the defendant. This could also happen if you’re accused of several offenses but there’s one or more severe offense among several other smaller offenses. Federal courts may determine to essentially ignore the lesser charges in favor of prosecuting the serious offense.

When you will be tried in both state and federal court

As with the Ahmaud Arbery murder trial mentioned above, some cases are tried in both sovereigns. Scenarios where a case could be tried in both courts include when a state law is violated and the victim is a foreign agent or federal employee, or there are different interests at each level for the law you have violated, or the federal prosecutors believe a conviction in state court may not result in sufficient punishment. Generally, however, the “Petite Policy” generally prevents cases from being tried in federal court after a state court conviction unless there exists “a substantial federal interest.”

It’s important to work with lawyers who have experience in both state and federal court. Barry M. Wax has decades of experience in both jurisdictions and gives people in trouble the ability to make the right choices to regain control of their lives. Contact us today.

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