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Double Jeopardy Clause


Double Jeopardy Clause

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ."[1] The four essential protections included are prohibitions against, for the same offense:

  • retrial after an acquittal;
  • retrial after a conviction;
  • retrial after certain mistrials; and
  • multiple punishment

Jeopardy attaches in jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence after the first witness is sworn in, or when a court accepts a defendant's plea unconditionally.[2] Jeopardy does not attach in a retrial of a conviction that was reversed on appeal on procedural grounds (as opposed to evidentiary insufficiency grounds), in a retrial for which "manifest necessity" has been shown following a mistrial, and in the seating of another grand jury if the prior one refuses to return an indictment.

"Same offense"

In United States v. Felix 503 U.S. 378 (1992), the U.S. Supreme Court ruled: "a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes."[3][4]

Sometimes the same conduct may violate different statutes. If all elements of a lesser offense are relied on to prove a greater offense, the two crimes are the "same offense" for double jeopardy purposes, and the doctrine will bar the second prosecution. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not".[5] The test was applied in Brown v. Ohio, 432 U.S. 161 (1977), where the defendant had first been convicted of operating an automobile without the owner's consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.

In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same "criminal transaction", but it is not permissible for the prosecution to re-litigate facts already determined by a jury. In Ashe v. Swenson, 397 U.S. 436 (1970), the defendant was accused of robbing seven poker players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury's acquittal had to be based on the conclusion that the defendant's alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not re-litigate the issue.

"Twice put in jeopardy"

Retrial after acquittal

Once acquitted, a defendant may not be retried for the same offense: "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense."[6] Acquittal by directed verdict is also final and cannot be appealed by the prosecution.[7] An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution.[8] A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge's determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated. Additionally, although a judge may overrule a guilty verdict by a jury, he or she does not have the same power to overrule a not guilty verdict.

More specifically, as stated in Ashe v. Swenson, 397 U.S. 436 (1970): "...when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Res judicata is a term of general application. Underneath that conceptual umbrella is the concept of collateral estoppel. As applied to double jeopardy, the court will use collateral estoppel as its basis for forming an opinion.

Implied acquittals

If a defendant charged with murder in the first degree is convicted for murder in the second degree, and later the jury's conviction is overturned on procedural grounds, the defendant may be retried for second degree but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly acquitted them of first degree murder.

Non-final judgments

As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply, despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause because a mistrial ends a trial prematurely without a judgment of guilty or not, as decided by the U.S. Supreme Court in United States v. Josef Perez (1824). Cases dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for substantially limited prosecutorial appeals from these orders. Also, a retrial after a conviction that has been set aside following the grant of a motion for new trial, that has been reversed on appeal, or that has been vacated in a collateral proceeding (such as habeas corpus) would not violate double jeopardy because the judgment in the first trial had been invalidated. In all of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.

Prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict and so would not place the defendant at risk of another trial.

Reversal for procedural error

If a defendant appeals a conviction and is successful in having it overturned, they are subject to retrial.


Retrial is not possible if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States 437 U.S. 1, (1978), the Court held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient."[9]


If the earlier trial is a fraud, double jeopardy will not prohibit a new trial because the party acquitted has prevented themselves from being placed into "jeopardy" to begin with.[10]

Grand juries and double jeopardy

The Double Jeopardy Clause of the Fifth Amendment does not attach in a grand jury proceeding, or bar a grand jury from returning an indictment when a prior grand jury has refused to do so.[11]

Retrial after conviction

A person who is convicted of one set of charges cannot in general be tried on additional charges related to the crime unless said additional charges cover new facts against which the person in question has not yet been acquitted or convicted. The test that determines whether this can occur is the Blockburger test.

An example of this are the charges of "conspiring to commit murder" and "murder". Both charges typically have facts distinct from each other. A person can be charged with "conspiring to commit murder" even if the murder never actually takes place if all facts necessary to support the charge can be demonstrated through evidence. Further, a person convicted or acquitted of murder can, additionally, be tried on conspiracy as well if it has been determined after the conviction or acquittal that a conspiracy did, in fact, take place.

Double Jeopardy and double jeopardy

A misconception regarding double jeopardy after a conviction comes from the movie Double Jeopardy. In the film, the main character Libby Parsons is convicted of murdering her husband Nick. She later discovers that he faked his death. In a jailhouse conversation, disbarred attorney Margaret Skolowski makes this statement to Libby about the double jeopardy clause:

It says no person can be convicted of the same crime twice, the state says you already killed your husband right? So, when you get out of here, you track him down, and you can kill him. You can walk up to him in Times Square put a gun to his head and pull the fucking trigger and there's nothing they can do about it!

The original murder charge alleged that Libby Parsons killed her husband Nick Parsons. The fact Nick was alive while the prosecution was saying he is not would invalidate the original indictment, if that were pursued. One such case where this has occurred is the 19th-century case of Jesse and Steven Boorn, convicted of murdering a man named Russel Colvin.[12] Colvin was later found alive and the Boorns subsequently released weeks before their scheduled execution.

If Libby were to kill Nick after discovering he was actually alive, such as "in the middle of Times Square", this would present the same action against the same victim as alleged in the original indictment. It would, however, be at a different time and, very likely, a different place than the original indictment alleged, making it a new offense, which could result in a new indictment. John Whitehead of the Rutherford Institute elaborated while speaking specifically of the movie Double Jeopardy:[13]

Prosecutors must plead their cases in very specific terms. They must note the time, place and method of a particular crime. This is done for two reasons. First, the Fifth Amendment protects the defendant from being prosecuted again for the same crime. This is known as "double jeopardy."
The second reason is to protect the prosecutor. For example, imagine a prosecutor bringing a person into court for burglary. If that same person had been tried for burglary last week, he might claim that the law against double jeopardy protects him from being tried in this second instance. However, if the prosecutor shows that last week's burglary took place in Virginia on a Tuesday night and this week's burglary took place in Maryland on a Wednesday night, the prosecutor can prove that double jeopardy doesn't apply--the defendant is being tried for different burglaries.

Whitehead continues by saying that the original indictment would have "stated a specific time and place for the crime." Actually killing Nick would present a new time and place, albeit for the same action and victim, making it a new crime for which she could be indicted without violating the double jeopardy clause.

Retrial after mistrial

Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in United States v. Josef Perez, 22 U.S. 579 (1824). When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."

Multiple punishments

The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts. Sentence increases may not, however, be made once the defendant has already begun serving his term of imprisonment.

The prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.

In Arizona v. Rumsey, 467 U.S. 203 (1984), it was ruled that in a bench trial, when a judge was holding a separate hearing after the jury trial, to decide if the defendant should be sentenced to death or life imprisonment, the judge decided that the circumstances of the case did not permit death to be imposed. On appeal the judge's ruling was found to be erroneous. However, even though the decision to impose life instead of death was based on an erroneous interpretation of the law by the judge, the conclusion of life imprisonment in the original case constituted an acquittal of the death penalty and thus death could not be imposed upon a subsequent trial. Even though the acquittal of the death penalty was erroneous in that case, the acquittal must stand.

"of life or limb"

Double jeopardy also does not apply if the later charge is civil rather than criminal in nature, which involves a different legal standard (crimes must be proven beyond a reasonable doubt, whereas civil wrongs need only be proven by preponderance of evidence or in some matters, clear and convincing evidence). Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though res judicata operates within the civil court system). For example, O. J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims.[14]

If the defendant happened to be on parole from an earlier offense at the time, the act for which he or she was acquitted may also be the subject of a parole violation hearing, which is not considered to be a criminal trial. Since parolees are usually subject to restrictions not imposed on other citizens, evidence of actions that were not deemed to be criminal by the court may be re-considered by the parole board. This legal board could deem the same evidence to be proof of a parole violation. Most states' parole boards have looser rules of evidence than is found in the courts – for example, hearsay that had been disallowed in court might be considered by a parole board. Finally, like civil trials parole violation hearings are also subject to a lower standard of proof so it is possible for a parolee to be punished by the parole board for criminal actions that he or she was acquitted of in court.

In the American military, courts-martial are subject to the same law of double jeopardy, since the Uniform Code of Military Justice has incorporated all of the protections of the U.S. Constitution. The non-criminal proceeding non-judicial punishment (or NJP) is considered to be akin to a civil case and is subject to lower standards than a court-martial, which is the same as a civilian court of law. NJP proceedings are commonly used to correct or punish minor breaches of military discipline. If a NJP proceeding fails to produce conclusive evidence, however, the commanding officer (or ranking official presiding over the NJP) is not allowed to prepare the same charge against the military member in question. In a court-martial, acquittal of the defendant means he is protected permanently from having those charges reinstated.

The most famous American court case invoking the claim of double jeopardy is probably the second murder trial in 1876 of Jack McCall, killer of Wild Bill Hickok. McCall was acquitted in his first trial, which Federal authorities later ruled to be illegal because it took place in an illegal town, Deadwood, then located in South Dakota Indian Territory. At the time, Federal law prohibited all except Native Americans from settling in the Indian Territory. McCall was retried in Federal Indian Territorial court, convicted, and hanged in 1877. He was the first person ever executed by Federal authorities in the Dakota Territory.

Double jeopardy also does not apply if the defendant were never tried from the start. Charges that were dropped or put on hold for any reason can always be reinstated in the future—if not barred by some statute of limitations.


Although the Fifth Amendment initially applied only to the federal government, the U.S. Supreme Court has ruled that the double jeopardy clause applies to the states as well through incorporation by the Fourteenth Amendment (Benton v. Maryland).

Dual sovereignty doctrine

The government of the United States and of each State therein may each enact their own laws and prosecute crimes pursuant thereto, provided there is no prohibition by the Constitution of the United States or of the state in question. Such is known as the "dual sovereignty" or "separate sovereigns" doctrine.

The earliest case at the Supreme Court of the United States to address the matter is Fox v. State of Ohio[15] in 1847, in which the petitioner, Malinda Fox, was appealing a conviction of a state crime of passing a counterfeit silver dollar. The power to coin money is granted exclusively to Congress, and it was argued that Congress's power precludes the power of any State from prosecuting any crimes pertaining to the money, an argument the Supreme Court rejected in upholding Fox's conviction.

A case that followed on Fox is United States v. Cruikshank,[16] in which the Supreme Court stated that the government of the United States is a separate sovereign from any State:

This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

In 1920 the United States was fresh in to the Prohibition Era. In one prosecution that occurred in Washington state, a defendant named Lanza was charged under a Washington statute and simultaneously under a United States statute, with the federal indictment stating several facts also stated in the Washington indictment. The Supreme Court addressed the question of the Federal government and a State government having separate prosecutions on the same facts in United States v. Lanza:[17]

We have here two sovereignties, deribing power from different sources, capable of dealing with the same subjectmatter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government (Barron v. City of Baltimore, 7 Pet. 243), and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority.

There may also be Federal laws that call other facts into question beyond the scope of any State law. A state may try a defendant for murder, after which the Federal government might try the same defendant for a Federal crime (perhaps a civil rights violation or a kidnapping) connected to the same act. The officers of the Los Angeles Police Department who were charged with assaulting Rodney King in 1991 were acquitted by a jury of the Superior Court, but some were later convicted and sentenced in Federal court for violating King's civil rights. Similar legal processes were used for prosecuting racially motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries that were thought to be racist or overly sympathetic with the accused in local courts.

Federal jurisdiction may apply because the defendant is a member of the armed forces or the victim(s) are armed forces members or dependents. U.S. Army Master Sergeant Timothy B. Hennis was acquitted in state court in North Carolina for the murders in 1985 of Kathryn Eastburn (age 31) and her daughters Kara, age five, and Erin, age three, who were stabbed to death in their home near Fort Bragg, North Carolina.[18] Two decades later, Hennis was recalled to active duty, court-martialed by the Army for the crime, and convicted.[19] Richard Dieter, executive director of the Death Penalty Information Center, observed of this case, "Certainly, no one [in the US] has been exonerated and then returned to death row for the same crime except Hennis."[20]

Furthermore, the "separate sovereigns" rule allows two states to prosecute for the same criminal act. For example, if a man stood in New York and shot and killed a man standing over the border in Connecticut, both New York and Connecticut could charge the shooter with murder.[21]

Only the states and tribal jurisdictions[22] are recognized as possessing a separate sovereignty, whereas territories, commonwealths (for example, Puerto Rico), the military and naval forces, and the capital city of Washington, D.C., are exclusively under Federal sovereignty. Acquittal in the court system of any of these entities would therefore preclude a re-trial (or a court-martial) in any court system under Federal jurisdiction.

"Petite" policy

Though the Supreme Court of the United States has recognized the dual sovereignty doctrine as an exception to double jeopardy, the United States will not exercise its dual sovereignty power on everyone who becomes subject to it. As a self-imposed limitation on its dual sovereignty power, the United States Department of Justice has a policy called the "Petite" policy, named after Petite v. United States, 361 U.S. 529 (1960). The formal name of the policy is "Dual and Successive Prosecution Policy" [23] and it "establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding."

Under this policy, the Department of Justice presumes that any prosecution at the State level for any fact applicable to any Federal charge vindicates any Federal interest in those facts, even if the outcome is an acquittal. As an example, a person who commits murder within the jurisdiction of a State is subject to that State's murder statute and the United States murder statute (18 U.S.C. § 1111). The Federal government will defer to the State to prosecute under their statute. Whatever the outcome of the trial, acquittal or conviction, the Department of Justice will presume that prosecution to vindicate any Federal interest and will not initiate prosecution under the United States Code.

However that presumption can be overcome. The policy stipulates five criteria that may overcome that presumption:

  1. incompetence, corruption, intimidation, or undue influence
  2. court or jury nullification in clear disregard of the evidence or the law
  3. the unavailability of significant evidence, either because it was not timely discovered or known by the prosecution, or because it was kept from the trier of fact’s consideration because of an erroneous interpretation of the law
  4. the failure in a prior state prosecution to prove an element of a state offense that is not an element of the contemplated federal offense
  5. the exclusion of charges in a prior federal prosecution out of concern for fairness to other defendants, or for significant resource considerations that favored separate federal prosecutions

The existence of any of these criteria is to be determined by an Assistant Attorney General of the United States. If a prosecution is determined to have proceeded without authorization, the Federal government may and has requested the Court vacate an indictment. Such a move is in line with the Courts vacating indictments wherein prosecutions were discovered to have violated Department of Justice policy. Indictments have also been vacated when the Federal government first represents to the Court the prosecution was authorized but later determines that authorization to have been mistaken.[24]


  1. ^ Harper, Timothy (October 2, 2007). The Complete Idiot's Guide to the U.S. Constitution. Penguin Group. p. 109.  
  2. ^ Serfass v. United States, 420 U.S. 377, 388 (1975)
  3. ^ Donofrio, Anthony J. (1993). "The Double Jeopardy Clause of the Fifth Amendment: The Supreme Court's Cursory Treatment of Underlying Conduct in Successive Prosecutions". Journal of Criminal Law and Criminology 83 (4): 773–803.  
  4. ^ Shindala, C. (1992). "Where Conspiracy To Commit a Crime Is Based on Previously Prosecuted Overt Acts, No Double Jeopardy Violation Exists". Mississippi Law Journal 62 (1): 229–243.  
  5. ^ Blockburger, at 304
  6. ^ Ball v. United States, 163 U.S. 662 at 642 (1896)
  7. ^ Fong Foo v. United States, 369 U.S. 141 (1962)
  8. ^ United States v. Jenkins, 420 U.S. 358 (1975)
  9. ^ Burks, at 11
  10. ^ Harry Aleman v. Judges of Circuit Court, Cook County, 138 F.3d 302 (7th Cir. 1998)
  11. ^ United States v. Williams, 504 U.S. 36, 49 (1992)
  12. ^ "First Wrongful Conviction, Jesse Boorn and Stephen Boorn". Northwestern University Bluhm Legal Clinic, Center on Wrongful Convictions. 
  13. ^ Whitehead, John W. (1999-10-04). "Double Jeopardy Does Not Allow You to Commit Murder". The Rutherford Institute. 
  14. ^ Thomas, George Conner (1998). Double Jeopardy: The History, the Law. New York University Press. p. 31.  
  15. ^ Fox v. State of Ohio, 46 U.S. (5 How) 410 (1847)
  16. ^ United States v. Cruikshank, 92 U.S. 542 (1875)
  17. ^ United States v. Lanza, 260 U.S. 377 (1922)
  18. ^ Innocent Victims (Onyx True Crime, Je 357) by Scott Whisnant
  19. ^ Paparella, Andrew. (2010-04-08) At 3rd Trial, Master Sgt. Timothy Hennis Guilty of 1985 Triple Murder – ABC News. Retrieved on 2012-01-02.
  20. ^  
  21. ^ United States v. Claiborne, 92 F.Supp.2d 503 (E.D.Va.); tandem state-federal prosecutions not prohibited under "sovereign rule"
  22. ^ United States v. Wheeler, 435 U. S. 313 (1978),
  23. ^ USAM § 9-2.031
  24. ^ Thompson v. United States, 444 U.S. 248 (1980)
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