When Does Double Jeopardy Attach?

The Fifth Amendment to the U.S. Constitution states that no person "shall be subject for the same offense to be twice put in jeopardy of life or limb." This is known as the double jeopardy clause. It prevents the government from pursuing a second prosecution against a criminal defendant for the same offense. The protection only applies in criminal cases, and there are some exceptions to the protection.

On its face, the double jeopardy rule seems straightforward. However, the U.S. Supreme Court has often been asked to clarify its meaning and application.

One question the court has addressed is when the protection attaches to a criminal defendant. The protection does not attach itself to a case immediately. Nor does it necessarily end upon conviction. This article summarizes when jeopardy attaches and what that means for a defendant.

When Double Jeopardy Attaches: Overview

Once law enforcement charges a criminal defendant with a crime, jeopardy attaches at one of the following stages:

• When the jury is sworn in at a criminal jury trial
• When the first witness is sworn in a bench trial
• When the court first hears evidence in a juvenile proceeding
• When the court accepts a plea agreement between a defendant and a prosecutor

After jeopardy attaches to a criminal defendant's case, the state generally cannot prosecute the defendant again for the same offense. However, some exceptions apply.

Successful Appeals

A criminal defendant's successful appeal may require a new criminal proceeding. If an appellate court reverses the first trial's result, the prosecution may retry the defendant. Jeopardy attaches in the retrial in the same manner as the first trial (i.e., when the jury is sworn in or the court swears in the first witness).

As the Supreme Court found in U.S. v. Perez (1824), retrials are allowed because double jeopardy applies only to final judgments. Judgments based on reversible errors are not final judgments protected by the Fifth Amendment. Examples of these reversible errors include:

• Instructing the jury on law inapplicable to the case
• Applying the wrong legal standard (such as standard of proof)
• Permitting improper attorney argument
• Improperly admitting or excluding evidence (such as evidence without foundation or hearsay)
• Juror misconduct at material stages of the trial
• Judge's abuse of discretion “outside the bounds of reasonableness"
• The law applied in the case later being ruled unconstitutional
• Recently discovered evidence that would have probably changed the verdict
• Ineffective assistance of counsel

The prime exception to this rule is a reversal for insufficient evidence, which permanently frees the defendant.

Mistrials

In some circumstances, courts will declare a mistrial. A mistrial may occur when the criminal trial's jury cannot agree to a verdict (otherwise known as a hung jury). Deadlocked jurors whose opinions are split can lead to retrials if “manifest necessity" demands a retrial. Other times, the court may declare a mistrial if a party engages in serious misconduct.

Mistrials don't necessarily invoke double jeopardy protections. They only invoke the protections if the trial judge weighs the reasoning for the mistrial and rightly dismisses the case.

The double jeopardy rule protects against mistrials caused by prosecutorial conduct. The criminal charges remain dismissed throughout all jurisdictions.

Double jeopardy does not attach when the defendant intentionally causes a mistrial. The court will allow the prosecution to commence a new trial in such a situation.

When Jeopardy Ends in Favor of the Defendant

Suppose jeopardy attaches to a case, and the jury acquits the defendant. In that situation, the government cannot detain them for additional court proceedings on the same issue. Jeopardy “ends" at the following exonerating stages:

• After a jury's verdict of acquittal
• After a trial court judge dismisses a case unless the judge abused their discretion
• After a successful post-conviction appeal in which the sufficiency of the evidence was challenged
• After a mistrial (and only if the judge dismisses the case)

As noted above, successful appeals and mistrials do not necessarily end double jeopardy protection.

Sometimes, prosecutors charge a defendant with multiple offenses. Depending on the offenses, these may include greater offenses or lesser-included offenses. Suppose the jury finds the defendant guilty of the lesser-included offense but not the greater offense. The court will treat this as an acquittal of the greater offense. Thus, the government cannot bring a second trial or subsequent prosecution for the greater offense for double jeopardy purposes.

Similarly, a judge may instruct a jury regarding two separate offenses. For example, a federal judge may instruct the jury on the elements of first-degree murder and second-degree murder. Suppose the jury finds the defendant guilty of second-degree murder. Suppose, further, that the jury is silent as to first-degree murder. The court treats the verdict as an acquittal of first-degree murder. Thus, the federal government cannot bring a second prosecution for first-degree murder.

Get Help Understanding Double Jeopardy

Double jeopardy protection is a complex area of criminal law. If the government has charged you with a crime, contact a local criminal defense attorney. An experienced attorney can provide you with information regarding the following:

• Specific information about the attachment of jeopardy in your case
• Your constitutional rights provided by the United States Constitution, including due process
• Specific legal advice about the criminal offenses with which you are charged, including misdemeanors or felonies
• Whether entering a guilty plea or negotiating a plea bargain is recommended in your case
• Whether civil asset forfeiture triggers double jeopardy
• Indictment by a grand jury
• State and federal law regarding your case

If you are facing criminal charges, do not delay in contacting a criminal defense lawyer near you.