When Double Jeopardy Protection Applies (and When It Doesn't)

The Fifth Amendment to the United States Constitution contains the Double Jeopardy Clause, which prevents criminal defendants from being prosecuted multiple times for a single offense. Double jeopardy protections apply once “jeopardy” attaches, which means the risk of conviction and punishment has begun.

Double jeopardy ranks among the most important constitutional rights criminal defendants possess. Understanding when jeopardy attaches (and when it doesn’t) is crucial to someone facing criminal charges.

This article explains how double jeopardy works and when it applies in a criminal case. We will also discuss when double jeopardy protections don’t apply.

If you or a loved one is facing serious criminal charges, consider speaking with a criminal defense attorney near you for legal advice. A skilled defense lawyer can determine if double jeopardy protections apply to your criminal case and help build a strong legal defense.

The Double Jeopardy Rule

The Double Jeopardy Clause is part of the Fifth Amendment to the U.S. Constitution. It protects criminal defendants from being tried for the same crime more than once. The double jeopardy protection applies in both state and federal courts.

The protections afforded by the double jeopardy clause only extend to criminal defendants who are “in jeopardy of life or limb.” Courts interpret this to mean any criminal proceeding in which someone faces the possibility of conviction and punishment, including felonies, misdemeanors, and juvenile delinquency cases.

When Does Jeopardy Attach?

It’s important to be aware of when jeopardy “attaches,” or goes into effect, during a trial. Jeopardy does not attach immediately upon arrest or when the prosecutor files criminal charges. Instead, it attaches at specific stages of a trial.

Jeopardy can attach at one of the following stages:

• In a jury trial: When the court swears in the jurors
• In a bench trial: When the court swears in the first witness (a bench trial is when a judge, instead of a jury, hears the case and makes the final decision)
• In a juvenile proceeding: When the court first hears evidence
• In a plea bargain: When the court accepts a plea agreement

Once a jury acquits a criminal defendant, their case is over. The state cannot try them again for the same crime. An appellate court can’t overturn a judgment of acquittal, even if there is overwhelming proof of guilt or the trial judge commits reversible error. This rule applies to both straightforward and implicit acquittals.

A jury can implicitly acquit a defendant by convicting them of a lesser-included offense. By electing not to convict the defendant of the greater crime, the jury effectively prevents the state from prosecuting the individual a second time.

Conviction and sentencing terminate jeopardy, preventing a re-prosecution. The state government only gets one chance to convict a person of the charged criminal offense. If the defendant is accused of a different crime, they must face prosecution for that specific offense.

The termination of jeopardy doesn’t prevent a defendant from filing an appeal. A person convicted of a crime can file an appeal long after the judge sentences them.

Exceptions to the Double Jeopardy Rule

In general, once double jeopardy attaches, the government cannot call for a second prosecution or retrial for the same criminal offense. There are exceptions, such as when a person faces criminal charges​ in two different states for the same crime.

Some of the other exceptions to the double jeopardy rule include:

• Mistrials: If the judge declares a mistrial​ due to manifest necessity (such as juror misconduct or an emergency), the state can often retry the defendant. If a mistrial is declared at the defendant’s request or with their consent, a retrial is normal. When the prosecution deliberately causes a mistrial to gain a tactical advantage, double jeopardy may bar a retrial.
• Deadlocked or “hung” jury: If the jury cannot reach a unanimous verdict in the first trial, the prosecutor can retry the defendant in a second trial. In some instances, they may determine that meeting the bar for a conviction is too high to merit another trial.
• Separate crimes arising from the same act: The same act can give rise to multiple distinct crimes. For example, if a defendant robs someone at gunpoint, they can be prosecuted for both robbery and illegal weapons possession, as each crime has different elements that must be proven. However, they cannot be prosecuted twice for the same robbery.
• Multiple jurisdictions: A person may face criminal charges in two states for the same criminal act. A defendant who stole cars in New York, drove them over the George Washington Bridge, and sold them in New Jersey could face charges for grand theft auto in both states.
• Separate sovereigns doctrine: A person may be tried in state court and federal court for the same criminal offense. This is known as dual sovereignty.
• Dismissals: In United States v. Scott,​ the U.S. Supreme Court ruled that if a judge dismisses charges at the defendant’s request for reasons unrelated to guilt or innocence (such as prosecutorial misconduct or pre-indictment delay), the state may retry the defendant. A dismissal of charges for insufficient evidence constitutes an acquittal and bars retrial.

Double jeopardy still applies to cases where new evidence​ emerges that wasn’t available during the first trial. The prosecution had a chance to uncover this evidence the first time around, and doesn’t get a second chance to convict the defendant at a new trial.

Do You Have Double Jeopardy Protection? An Attorney Can Help

Double jeopardy is a fundamental constitutional right. Dealing with multiple prosecutions can be incredibly stressful and overwhelming. A knowledgeable and supportive attorney can help alleviate some of the uncertainty and anxiety you’re experiencing. Contact a local criminal defense lawyer to learn whether double jeopardy applies to your case.