Double Jeopardy

The constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.

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What it means

The Fifth Amendment provides that no person shall be twice put in jeopardy for the same offense. The clause protects against a second prosecution for the same offense after acquittal, a second prosecution after conviction, and multiple punishments for the same offense in a single proceeding. An acquittal is final however wrong the verdict, and the prosecution may not appeal it, retry the defendant, or relitigate a fact the acquittal necessarily decided in a later prosecution for a different offense. Jeopardy attaches when the jury is sworn or, in a bench trial, when the first witness is sworn, and in a plea when the court accepts it; a dismissal before that point permits refiling.

"Same offense" is tested by the elements, not the conduct: two statutory provisions are the same offense unless each requires proof of a fact the other does not, so a single act can lawfully be charged and punished under two statutes with different elements, and a lesser-included offense is the same offense as the greater. The clause does not bar a retrial after a conviction is reversed on appeal for an error at trial - the defendant's appeal is treated as a continuation of the original jeopardy - but it does bar retrial after a reversal for insufficient evidence, which is the equivalent of an acquittal. A mistrial declared over the defendant's objection permits retrial only where there was manifest necessity, a hung jury being the classic case; a mistrial the defendant requested permits retrial unless the prosecutor deliberately provoked it.

Under the dual-sovereignty doctrine, the state and the federal government are separate sovereigns with separate offenses, so an acquittal in one does not bar prosecution in the other for the same act, and two states may each prosecute; the federal government limits successive prosecutions by internal policy, not by law. Civil consequences of the same act - a civil fine, forfeiture, professional discipline, deportation, sex-offender registration - are not "punishment" for double-jeopardy purposes unless they are so punitive as to be criminal in effect. The clause is a personal right that is waived if not raised before trial.

Where this comes from

When people hire a lawyer for this

Double jeopardy is a question for the lawyer at charging and plea stage, not after a second trial has begun: whether multiple counts are really one offense, whether a plea to one charge will bar the others, whether a hung jury means retrial, and whether a federal case may follow a state one are all answerable in advance. A person acquitted in one court and then charged by another sovereign for the same act should not assume the first verdict ends it; a person facing what looks like a second prosecution by the same sovereign should raise the bar in writing before trial or lose it.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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