The Constitutional Prohibition Against Double Jeopardy

What Is the Source of the Rule? What Are the Basic Protections It Provides?

The United States Constitution provides extensive protections to citizens involved in criminal proceedings. The Bill of Rights, drafted by former British subjects who knew firsthand the ways in which criminal laws could be used to persecute and victimize individuals, put measures in place to keep those powers in check. One of the most important is the so-called “double jeopardy” clause, found in the 5th Amendment.

What Is the Double Jeopardy Clause?

Under the provisions of the 5th Amendment, no “person shall be subject for the same offense to be twice put in jeopardy of life or limb…” In other words, the government may not initiate a second prosecution for the same offense once the first case ends, either in acquittal or conviction. For example, the prosecution may not re-file charges if it is dissatisfied with the sentencing at a trial. The double jeopardy clause applies to some, but not all, mistrials, and it ensures that a defendant is not punished more than once for the same crime.

How Far Must the First Trial Go to Trigger the Protections of the Double Jeopardy Clause?

A defendant will be immune from subsequent prosecution for the same event once a jury is sworn in. If there is no jury (i.e., in a bench trial), double jeopardy kicks in the minute the first witness is sworn in. Additionally, if a defendant enters a plea, double jeopardy goes into effect.

When Does Double Jeopardy Not Apply?

As a general rule, the 5th Amendment does not prohibit re-prosecution under the following circumstances:

• When a defendant is prosecuted in both state and federal court for the same offense
• When a mistrial is ordered, but there is “manifest necessity” for a retrial (e.g., when a first trial ends with a hung jury or where evidence indicates something occurred in court to bias the jury)
• When a prior conviction is thrown out on appeal because of a procedural error
• When a grand jury refuses to return an indictment

How Do Courts Interpret the Phrase “Same Offense” in Applying the Double Jeopardy Rule?

The United States Supreme Court has scrutinized the double jeopardy clause, laying down some fundamental distinctions:

• If two prosecutions are for the violation of two distinct statutes, double jeopardy applies if all the elements of the lesser offense are also elements of the more serious offense. Double jeopardy will not apply to a second prosecution only if the crime charged contains at least one element not found in the crime of the first prosecution. As stated in the Supreme Court’s opinion in Blockburger v. United States, to constitute separate offenses, each violation must require proof of a fact not required in the other prosecution. A person charged with a “lesser included offense” may not subsequently be charged with a greater offense if the lesser included offense does not have elements contained in the greater offense. For example, in one case, the offense of joyriding (defined as operating a vehicle without the owner’s consent) was found to be a lesser included offense of auto theft because the two offenses required the same proof.
• The commission of an offense is not the same offense as conspiracy to commit that offense.
• Prosecution of the same defendant for a criminal act against a different victim generally does not violate the double jeopardy clause, although facts determined by a jury in a prior prosecution may not be contested in a subsequent criminal action.