Double jeopardy is the constitutional protection that generally prevents a person from being prosecuted or punished more than once for the same criminal offense. The protection appears in the Fifth Amendment and applies to both federal and state prosecutions.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be placed twice in jeopardy “for the same offence.”
The Supreme Court has identified three core protections. Double jeopardy generally protects against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for the same offense beyond what the law permits.
The protection applies to the states through the Fourteenth Amendment. The Supreme Court confirmed that rule in Benton v. Maryland.
The protection does not attach merely because someone has been arrested, charged, or indicted.
In a jury trial, jeopardy generally attaches when the jury is empaneled and sworn. In a bench trial, it generally attaches when the court begins to hear evidence.
That point matters because many double jeopardy protections concern what happens after the government has already placed the defendant in jeopardy in an earlier proceeding.
Two charges involving the same conduct are not necessarily the same offense for double jeopardy purposes.
Courts commonly apply the Blockburger test. Under that test, two offenses are treated as different if each requires proof of an element that the other does not. If neither offense contains a distinct element, they generally constitute the same offense for double jeopardy purposes.
This can also affect greater and lesser-included offenses.
When a mistrial is declared over a defendant's objection, retrial generally requires “manifest necessity.” A deadlocked jury is the classic example.
When the defendant requests the mistrial, retrial is ordinarily permitted. An important exception applies when prosecutorial conduct was intended to provoke the defendant into requesting the mistrial.
The Double Jeopardy Clause does not always prevent separate governments from prosecuting conduct arising from the same act.
Under the separate sovereigns doctrine, a state and the federal government can prosecute offenses under their respective laws without necessarily violating double jeopardy. The Supreme Court reaffirmed that doctrine in Gamble v. United States in 2019.
The doctrine protects the finality of criminal proceedings and limits the government's ability to repeatedly prosecute a person in hopes of eventually obtaining a conviction.
At the same time, its application depends on questions such as when jeopardy attached, whether the first proceeding reached a legally significant conclusion, whether the charges constitute the same offense, and whether separate sovereigns are involved.
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