Double Jeopardy and Orders of Protection


Most Tennesseans are probably somewhat familiar with the concept of double jeopardy. However, it is unlikely that many Tennesseans understand how double jeopardy protections actually work. Essentially double jeopardy protects a person from being tried for the same crime twice. Of course it goes without saying that applying double jeopardy as a defense in a criminal case can be far more complicated than it may look.

In March of this year the Tennessee Supreme Court adopted a new double jeopardy standard, essentially adopting the Federal standard adopted in Blockburger v. United States, 284 U.S. 299 (1932). Blockburger has been the standard in the Federal system for decades and Tennessee recently altered its double jeopardy standard to the Blockburger standard. "The Blockburger test involves a two-step process. First, under Blockburger is whether the alleged statutory violations arise from 'the same act or transaction.' . . . Secondly, the court examines the statutes to determine whether the crimes of which the defendant was convicted constitute the same offense." State v. Watkins, 362 S.W.3d 530 (Tenn. 2012).

When the Tennessee Supreme Court explicitly adopted Blockburger it came as no surprise, considering the Court has been leaning that way for a while now. Last year, Tennessee's high court addressed double jeopardy in the context of orders of protection and contempt of court.

When a court issues an Order of Protection in Tennessee, a violation of that order allows the violator to be prosecuted. One who violates an order may be prosecuted under criminal contempt provisions or under a criminal statute which criminalizes violations of orders of protection. Until last year, charging someone under both contempt and criminal statute was widely accepted. Now, that may not be the case. The Tennessee Attorney General previously released an opinion which suggests that the dual prosecution was constitutional. However, Attorney General Opinions are only opinions and are not binding. The Tennessee Court of Criminal Appeals disagreed with the Attorney General in State v. Matthews, 2011 WL 3798873 (Tenn. Crim. App. Aug. 26, 2011). Matthews was prosecuted for criminal contempt as a result of a single violation the order of protection issued against him. He was then charged for violating the criminal statute used for violating orders of protection. The Court in Matthews determined that the both charges relied on the same evidence; both involved the same victim and the same action. Accordingly, the Court dismissed the criminal conviction under the statute as it violated of double jeopardy.

Double jeopardy is very tricky because so many different factors can be taken into consideration and those factors are not always intuitive. Because of this fact it is important to get the advice of an experienced criminal defense attorney to help you evaluate the potential double jeopardy implications of your specific case. To discuss your case with the experienced criminal defense attorney, please feel free to contact The Bowlin Law Firm.