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Illinois Criminal Code of 1961

Article 3 - Double Jeopardy

What does it mean to have a fair trial? These sections of Illinois law, 720 ILCS 5/3-3 and 720 ILCS 5/3-4, list some of the most important protections defendants have against unlawful prosecution. Most notably, Illinois law forbids the state from prosecuting defendants multiple times for the same act or prosecuting a defendant who was formerly prosecuted for the same offense.

Commonly referred to as "double jeopardy" this can be an effective defense tactic in certain circumstances. However, many attempts to dismiss a criminal charge based on double jeopardy fail. See for example THE PEOPLE OF THE STATE OF ILLINOIS v. TED B. GRAY, a case that involved four counts of criminal sexual assault and one count of unlawful possession of a weapon. Another interesting Illinois double jeopardy case is THE PEOPLE OF THE STATE OF ILLINOIS v. ALEJANDRO GARCIA, which involved a ticket for illegal squealing or screeching of tires and a separate reckless-driving charge against the defendant.

If you've been accused of a crime in Illinois and feel that you are being charged twice for the same crime, in violation of Illinois double jeopardy laws, contact our Chicago criminal defense attorneys today at (312) 466-9466 to discuss your case.

The text below comes from Article 3 of the Illinois Criminal Code of 1961. This law may have changed -- please read the important legal disclaimer at the bottom of this page.

Illinois Criminal Code of 1961 - Article 3 - Rights of Defendant

Sec. 3-3. Multiple prosecutions for same act.
    (720 ILCS 5/3-3)

(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.

(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.

(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately. (Source: Laws 1961, p. 1983.)

Sec. 3-4. Effect of former prosecution.
    (720 ILCS 5/3-4)

(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if that former prosecution:

(1) resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction;

(2) was terminated by a final order or judgment, even if entered before trial, that required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution; or

(3) was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts, or after a plea of guilty was accepted by the court.

A conviction of an included offense, other than through a plea of guilty, is an acquittal of the offense charged.

(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if that former prosecution:

(1) resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of that charge); or was for an offense that involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began;

(2) was terminated by a final order or judgment, even if entered before trial, that required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution; or

(3) was terminated improperly under the circumstances stated in subsection (a), and the subsequent prosecution is for an offense of which the defendant could have been convicted if the former prosecution had not been terminated improperly.

(c) A prosecution is barred if the defendant was formerly prosecuted in a District Court of the United States or in a sister state for an offense that is within the concurrent jurisdiction of this State, if that former prosecution:

(1) resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began; or

(2) was terminated by a final order or judgment, even if entered before trial, that required a determination inconsistent with any fact necessary to a conviction in the prosecution in this State.

(d) A prosecution is not barred within the meaning of this Section 3-4, however, if the former prosecution:

(1) was before a court that lacked jurisdiction over the defendant or the offense; or

(2) was procured by the defendant without the knowledge of the proper prosecuting officer, and with the purpose of avoiding the sentence that otherwise might be imposed; or if subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the defendant was thereby adjudged not guilty. (Source: P.A. 96-710, eff. 1-1-10.)

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DISCLAIMER: These excerpts from the law are provided for reference purposes only. Visitors to our Chicago criminal defense lawyer website should be aware that Illinois criminal laws have been amended many times and that Illinois crime laws posted on this site may not be current. In addition, Illinois criminal case law defines precedents for legal determinations that are not defined in the original laws.

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