The Concept of Double Jeopardy: Background

It should come as no surprise, then, that the prohibition against double jeopardy is centuries old. It even appears that double jeopardy principles existed in criminal law and criminal cases in ancient Greece and Rome. An examination of its history brings to light why it is a fundamental right.

The double jeopardy clause in the U.S. Constitution's Fifth Amendment states, "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." This fundamental right prevents the federal government from prosecuting individuals more than once for a single offense. It also prevents them from imposing multiple punishments for a single crime.

Most state constitutions also guarantee this right to defendants appearing in state court. Some states do not expressly guarantee this right in their laws. However, the double jeopardy clause applies to state proceedings via the Fourteenth Amendment. So, these states must still afford the protection to criminal defendants.

This article briefly describes the prohibition against double jeopardy. Then, it discusses the origins of double jeopardy. It concludes by discussing its history after the Revolutionary War.

Double Jeopardy and the Constitution

The U.S. Supreme Court ruled in a series of cases that the Due Process and Equal Protection Clauses of the Fourteenth Amendment guarantee to the citizens of every state the right to exercise certain fundamental liberties. These liberties include (but aren't limited to) every freedom outlined in the Bill of Rights, except for the following:

It is difficult to overstate the importance of the double jeopardy clause. Legal scholars have even called it the most fundamental procedural right. United States case law has referred to this right as "an indispensable requirement of a civilized criminal procedure." Another case noted that the protection against double jeopardy "can hardly be doubted."

Double Jeopardy Background: Early History

The concept of double jeopardy is one of the oldest in Western civilization. While double jeopardy principles existed in ancient cultures, their exact origins are unclear.

state court decision, Stout v. State (1913), stated the doctrine was present in English common law. It also suggested the protection dates back to Roman law. The court's opinion indicated that the protection did not have a "specific origin, it simply always existed."

Legal scholars, however, disagree with the state court's assertion. Some argue that double jeopardy was not a fundamental right in early jurisprudence.

Regardless of its exact origins, there is no question that the United States did not "invent" double jeopardy protection. Indeed, multiple ancient jurisprudence systems reference the fundamental principles of double jeopardy.

Ancient Greece

Greek law contained forms of double jeopardy protection. In 355 B.C., Athenian statesman Demosthenes said the "law forbids the same man to be tried twice on the same issue." Similarly, in ancient Athens, "[a] man could not be tried twice for the same offense."


Roman criminal law also contained references to current principles of double jeopardy protection. In Rome, if a judge or magistrate acquitted a criminal defendant, further proceedings "of any kind" were barred against them. Roman law also contained a maxim that translates to "[n]o one ought to be punished twice for the same offense." It was later codified in the Digest of Justinian.

Double Jeopardy in England

In English common law, the protection against double jeopardy was a universal maxim. It was embraced by eminent jurists such as:

  • Henry de Bracton (1250)
  • Sir Edward Coke (1628)
  • Sir Matthew Hale (1736)
  • Sir William Blackstone (1769)

The English double jeopardy doctrine, however, was extremely narrow. It only afforded protection to defendants accused of capital felonies. It also only applied after a conviction or acquittal. It did not apply to cases dismissed before final judgment. Moreover, it was not immune to abuse by the British Crown.

Double Jeopardy in the American Colonies

The American colonists were intimately familiar with the jurists' writings. Copies of Sir William Blackstone's Commentaries on English law were available in most colonies. Blackstone wrote that the protection against double jeopardy was a "universal maxim" of English common law. Colonists quoted his teachings in support of their claims against the English Parliament.

The colonists also knew how narrowly England defined the right against double jeopardy. The Framers debated double jeopardy after the Revolutionary War during the Constitutional Convention. There, James Madison sought to expand double jeopardy's scope.

Madison sought to make the right against double jeopardy applicable to all crimes, not just capital felonies. Critics perceived Madison's original draft of the double jeopardy clause as too restrictive. The initial draft in United States v. Halper (1989) provided that "No person shall be subject ... to more than one punishment or one trial for the same offense."

Several convention members objected to this wording. They argued that the proposed wording may prevent defendants from seeking a second trial on appeal. Ultimately, the Framers modified the Fifth Amendment's language to address this concern. The final version ratified by the states left other questions for judicial interpretation.

Judicial Developments of Double Jeopardy

Today, the prohibition against double jeopardy protects a criminal defendant from the following:

  • Prosecution for the same criminal offense after an acquittal
  • A second prosecution for the same criminal offense after a conviction
  • Prosecution after certain mistrials
  • Facing more than one punishment for a single offense

Thus, if a jury acquits a defendant and the prosecution attempts to charge them a second time for the same crime, the defendant may use the Fifth Amendment to protect themselves. Double jeopardy only applies to criminal cases.

After its ratification, questions arose about the clause's meaning. For example:

  • When does double jeopardy attach?
  • What is a "single offense" for double jeopardy purposes?
  • How does double jeopardy handle a crime committed in two different states?

The Supreme Court later interpreted the double jeopardy clause and answered these questions.

When Does Double Jeopardy Attach?

Double jeopardy attaches when the government places someone in "jeopardy." The Supreme Court determined this typically means when the court swears in the jurors in a criminal jury trial.

In a bench trial, it usually occurs when the prosecution calls their first witness. A bench trial differs from a jury trial in that the judge decides the case's outcome.

If an appellate court reverses the district court, the prosecution may retry the case. However, if the appellate court determines there was insufficient evidence to convict the defendant in the first trial, a retrial may not be allowed.

Additionally, the court may allow a retrial if the criminal trial results in a mistrial. A retrial is essentially a new trial on the same facts. A mistrial may occur if the jury cannot unanimously agree on a verdict. However, if the court determines there was prosecutorial misconduct, it may not allow a retrial.

What Is a "Single Offense" for Double Jeopardy Purposes?

The Supreme Court clarified what constitutes a "single offense" for double jeopardy purposes. In Blockburger v. United States (1932), the Supreme Court established the "same elements" test. The test applies in a criminal proceeding where the government charges the defendant with two or more criminal offenses. Double jeopardy does not protect the defendant if each offense requires the government to prove an additional fact not found in the other offense.

Blockburger also prevents the government from imposing cumulative punishments and multiple prosecutions for greater- or lesser-included offenses.

For example, suppose the government charges a person with arson and robbery. The government must prove different statutory elements for each charge. Thus, the defendant cannot claim double jeopardy.

Alternatively, suppose the government charges a person with burglary and trespassing. To prove beyond a reasonable doubt that the defendant committed burglary, the prosecution must necessarily prove the defendant trespassed. This is known as a lesser-included offense. Thus, Blockburger prevents the government from imposing a cumulative punishment for the trespass.

A similar concept is collateral estoppel. This doctrine prevents a party from relitigating an issue in a case previously decided in another cause of action or in the current cause of action.

One Crime Committed in Several States

If a criminal defendant commits a single crime that crosses state lines, the law treats their actions as two separate offenses. Thus, both states can prosecute the defendant. These prosecutions do not violate the prohibition against double jeopardy because the states are technically separate sovereigns. This is known as the dual sovereignty doctrine.

Have Your Questions About Double Jeopardy Answered by a Lawyer

If you have questions about Double Jeopardy, consider contacting a criminal defense attorney. An experienced attorney can provide you with specific information regarding the following:

Get started today by contacting an experienced criminal defense attorney near you.

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