By Samuel Strom, J.D. | Legally reviewed by Rhonda Earhart, Esq. | Last reviewed November 28, 2023
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In the legal context, "jeopardy" refers to the danger of conviction that a defendant faces when on trial for a crime. The Fifth Amendment to the U.S. Constitution prohibits double jeopardy.
Double jeopardy occurs when a defendant is tried twice for the same criminal offense. It only applies to criminal cases; it does not apply to civil lawsuits. Jeopardy attaches when a court swears in the jurors in a jury trial. In a bench trial, jeopardy attaches when a judge begins to hear evidence or swears in the first witness.
Determining when jeopardy terminates is just as important as determining when it begins. Once jeopardy ends, the government cannot detain someone for additional court proceedings on the same matter without raising double jeopardy questions. If jeopardy does not terminate after one proceeding, jeopardy continues. In that situation, the court may permit further criminal proceedings.
Jeopardy can terminate in the following instances:
An acquittal will definitively end jeopardy. The circumstances surrounding a dismissal, mistrial, or appeal will affect whether jeopardy has ended.
This article discusses the instances when jeopardy may terminate. For more information about double jeopardy, including when it applies and its history, explore FindLaw's Criminal Rights section. For specific legal advice, consider contacting a criminal defense attorney near you.
A jury's verdict of acquittal terminates jeopardy. An appellate court cannot overturn a judgment of acquittal. Even if there is overwhelming proof of guilt, or the trial judge commits reversible error in their ruling, the appellate court cannot overturn it. This entrusts the jury with the power to nullify criminal prosecutions tainted by misconduct by the police, the prosecutor, or the court.
A jury can also implicitly acquit a defendant. A judge may instruct the jury on the elements of a particular crime and a lesser-included offense.
Suppose the jury returns a guilty verdict on the lesser offense. The jury is silent regarding the greater offense. The double jeopardy clause bars reprosecution for the greater offense.
For example, suppose the court instructed a jury about first- and second-degree murder. Suppose the jury returned a guilty verdict only as to second-degree murder. In that case, the jury implicitly acquitted the defendant of first-degree murder. The jury's silence as to the greater offense implies the defendant is not guilty of it.
Trial courts grant dismissals due to procedural errors and defects. Courts may enter a dismissal at the following times:
However, jeopardy must attach before a dismissal implicates double jeopardy protection.
There are many reasons a district court may dismiss a criminal case. For example, the prosecution must establish that a court has jurisdiction over the defendant before the criminal case begins. Failing to establish jurisdiction will normally result in a dismissal.
Once jeopardy attaches, a court's dismissal in the first trial due to insufficient evidence terminates jeopardy. This bars further prosecution. If a court dismisses a case after submission to a jury but before it reaches a verdict, the prosecution cannot appeal it.
There is, however, an exception to this rule. Suppose the jury returns a guilty verdict. Subsequently, the court dismisses the case. Because the jury returned a guilty verdict, the prosecution may appeal the dismissal. However, if the judge sets aside the jury verdict due to insufficiency of the evidence, it typically has the same effect as an acquittal. The prosecution cannot appeal or retry the defendant in those cases.
If the appellate court reverses the dismissal, the court may reinstate the guilty verdict without a second trial. Suppose a criminal defendant asks that the court dismiss their case for reasons other than the sufficiency of the evidence. For example, the defendant may claim the federal government violated their right to a speedy trial. In such an instance, the court will allow the government to prosecute the defendant a second time. But a retrial is permitted only if the judge dismissed the case without prejudice.
The U.S. Supreme Court held in United States v. Scott that the double jeopardy rule is not triggered when defendants obtain a dismissal for reasons unrelated to their guilt or innocence.
Courts declare mistrials when they determine it is impracticable or impossible to finish a case. Courts typically declare mistrials when jurors fail to reach a verdict. This is also known as a hung jury.
Like dismissals, mistrials declared at the defendant's request will not terminate jeopardy. Therefore, it will not prevent a second prosecution. Nor will a mistrial preclude a subsequent prosecution when the defendant consents to a mistrial.
Suppose, however, a defendant objects to a mistrial. In this instance, the court will only allow a second prosecution if the mistrial resulted from "manifest necessity." Basically, a mistrial that the parties could have reasonably avoided will terminate jeopardy.
Jeopardy will continue, however, if the mistrial is unavoidable. The "manifest necessity" standard has been satisfied where mistrials have resulted from the following:
Manifest necessity is not present when mistrials result from prosecutorial or judicial manipulation. In each of these cases, courts balance the defendant's interests in finality against society's interest in a fair and just legal system.
A defendant generally has the right to at least one appeal after conviction. An appeal occurs when a party believes the court made an error of law in its prior proceeding. The reviewing court will review the earlier proceeding to determine if the court committed any errors.
If the appellate court determines an error occurred, it may reverse the decision. If the appellate court reverses the conviction due to insufficient evidence, it's treated as an acquittal. Thus, further prosecution is not permitted.
However, the government may reprosecute a defendant when the reversal is not based on a lack of evidence. The grounds for such reversals include:
Society's interest in punishing the guilty justifies such retrials. Suppose a court overturns a guilty verdict for reasons unrelated to guilt or innocence. In such an instance, the justice system considers defendants' countervailing interests inferior. Thus, it will allow a retrial.
Courts may permit prosecutors to seek a more severe sentence during a retrial when an appellate court reverses a conviction. Defendants appealing their conviction assume the risk that a harsher sentence will be imposed during the retrial.
In most retrials, however, courts may not impose the death sentence on a defendant when the jury recommended life in prison during the first. The recommendation of life imprisonment is considered an acquittal on the issue of capital punishment.
Double jeopardy is a powerful tool for protection against governmental abuse. However, double jeopardy is complex, even for legal professionals. If you are facing criminal charges, consider contacting a criminal defense attorney. An experienced attorney can provide helpful legal advice regarding the following:
Contact a qualified criminal lawyer to make sure your rights are protected.
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.