Double Jeopardy

The protection against double jeopardy keeps defendants from facing criminal prosecution more than once for the same offense. Once jeopardy attaches and a criminal case begins, this protection can prevent lives from being consumed by legal proceedings. It can also save governments time and money.

We have all heard the phrase "double jeopardy" on TV or in movies, but what does it mean, legally? In criminal law cases, double jeopardy is not a make-or-break moment in a game show.

Below you will find more information on the double jeopardy rule and its application in criminal law. For specific legal advice, contact a criminal defense attorney.

Double Jeopardy Basics

The Fifth Amendment to the United States Constitution contains the double jeopardy clause. It states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."

Most state constitutions similarly protect individuals from retrial for the same crime. For criminal defendants, this is a crucial constitutional right. It generally applies regardless of the severity of the alleged offense.

Scope of Double Jeopardy Protection

The text of the Fifth Amendment refers to being placed twice in jeopardy of "life or limb." The law is not applied so literally. The U.S. Supreme Court says the principle protects against a retrial for all kinds of felonies, misdemeanors, and juvenile delinquency adjudications. The potential punishment does not matter.

Why Is Double Jeopardy Important?

There are several reasons behind the rule against double jeopardy. The principle does the following for the legal system:

  • Preserves the finality of criminal proceedings
  • Imposes limits on prosecutors' power
  • Protects individuals from the financial and emotional toll of repeated prosecutions

States can provide greater protection against multiple prosecutions than the U.S. Constitution does — but not less.

What Are Examples of Double Jeopardy?

Suppose Brad is arrested for driving while intoxicated (DWI). His criminal case proceeds to a jury trial in a state district court. The jury ultimately acquits Brad of his criminal charges. An acquittal means the suspect is found not guilty of the charged offenses. Under federal law, the double jeopardy clause protects Brad from facing a second prosecution for this specific DWI.

Now, suppose a police officer arrests Brad for driving under the influence (DUI) one week after his first trial ended. Brad asserts that the state cannot prosecute him again for DWI/DUI because of double jeopardy. Brad is wrong. The DWI charge on which Brad was acquitted occurred on a different date than the new DUI charge. The state can charge him with a new criminal offense following his second DUI. Therefore, just because a jury acquitted him at his criminal trial one week ago does not grant him immunity forever from future criminal charges.

When Does Jeopardy Attach?

There are limits and exceptions to double jeopardy. First, if a defendant was never previously in legal "jeopardy," then subsequent prosecution is not prohibited. Generally, jeopardy attaches to a case when a jury is sworn in.

Second, if prosecutors take certain actions before jeopardy attaches, such as dismissing the indictment, the rule will not prevent them from later trying the same person for the same offense. This allows the prosecution to direct a thorough investigation and adequately prepare for trial.

After an individual has been in legal jeopardy, and the jeopardy ends, the government cannot continue prosecuting them for the same crime. Jeopardy will always end after a jury's verdict of acquittal.

What if the court declares a mistrial? A judge can declare a mistrial for multiple reasons, such as if the jury cannot reach a unanimous verdict. A mistrial is also known as a hung jury, which may occur when one juror does not agree with most jurors. In most cases, a mistrial does not stop the government from prosecuting the case again. However, if there has been prosecutorial misconduct or bad faith, double jeopardy can sometimes preclude the prosecution from bringing charges again.

What Is Considered the Same Offense?

The double jeopardy rule applies to the re-prosecution of the same person for the same offense. But what constitutes the same offense? State and federal courts use many tests to determine whether the same facts have already been litigated.

Courts determine whether the state presented the "actual evidence" already. Were the alleged criminal acts part of the "same transaction"? Is the prosecution accusing the defendant of the same conduct again?

The Supreme Court ruled in Brown v. Ohio (1977) that double jeopardy rules apply to greater- and lesser-included offenses. For example, if a court convicts Brad for domestic violence, the same court cannot later try to convict him for the more severe charge of aggravated assault for that same incident in a subsequent trial. Also, if a jury acquits Brad of an aggravated assault charge, the court cannot later try him again for a simple assault that is based on the same facts.

Does Double Jeopardy Apply in Murder Cases?

What if the police charge Brad with a more serious offense, like murder? The double jeopardy rule still applies. Prosecutors cannot simply appeal verdicts with which they disagree. If a judge fails to follow the law, however, there are some limited bases for appeal by the prosecution.

What if New Evidence Comes to Light?

New evidence cannot lead to a subsequent prosecution for the same crime. Prosecutors get one shot to build and argue the best case they can. Allowing further evidence to result in more trials could create a never-ending legal process for one defendant.

The same defendant might face criminal charges for a different criminal offense tangentially related to the initial offense. For example, suppose the state charged someone with assault and lost at trial. The state could still separately prosecute charges for drug crimes that occurred around the same time. The double jeopardy rule would not apply.

How Does Double Jeopardy Affect the States?

The protection generally applies even in states that do not expressly prohibit double jeopardy. In the 1969 decision Benton v. Maryland, the U.S. Supreme Court held that double jeopardy applies to state and federal prosecutions under the 14th Amendment doctrine of incorporation of rights.

Perhaps the most significant exception to the application of the double jeopardy rule is the concept of dual sovereignty. Recognizing the separate authority of the federal government and state governments, the Supreme Court ruled in 2019 that it is permissible for a person convicted or acquitted of a crime in a state court to be subsequently prosecuted and convicted federally for the same offense (Gamble v. United States). Likewise, if a criminal act or episode crosses state lines, both states can prosecute the crime independently without running afoul of the constitutional protections of the double jeopardy clause (Heath v. Alabama (1985)).

Learn More About Double Jeopardy by Talking to an Attorney

The right not to be re-prosecuted for the same crime is a fundamental constitutional protection. It can keep you or a loved one free — from jail or prison — and free from unending legal processes.

However, criminal law is complex. If you fear for your rights and freedom, get help from an experienced criminal defense attorney. They will understand the nuances of the local law and whether a double jeopardy defense applies to your case.

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