Also known as: double jeopardy
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional command in the Fifth Amendment that prohibits the government from subjecting a person to multiple prosecutions or punishments for the same offense. The protection attaches once jeopardy has attached in a proceeding with competent jurisdiction and terminates upon acquittal, conviction, or certain dismissals that resolve factual guilt.
Darius Dixon was convicted in state court of auto theft after stealing a vehicle. The state later charged him with joyriding based on the identical conduct. The court dismissed the joyriding charge because the prior prosecution for the greater offense barred the lesser included offense under the same conduct.
Dwight Dorsey faced state charges for the same conduct that had already resulted in a federal acquittal. The state court applied the federal double jeopardy bar because the Fifth Amendment protection extends to state proceedings through the Fourteenth Amendment.
Select any source to read its text and confirm it supports the definition.
Deborah Dunn was convicted of fraud but the conviction was reversed because the trial court had admitted inadmissible evidence. The state retried her on the same charges. The retrial proceeded because reversal for evidentiary error does not trigger a double jeopardy bar even when remaining evidence might appear insufficient.
Denise Donovan moved to dismiss her indictment on procedural grounds unrelated to factual guilt. The court granted the motion. The government later refiled the charges and the second prosecution was allowed because the dismissal did not resolve the merits of guilt or innocence.
Dominic Drake received an enhanced sentence in one case based on prior conduct. Prosecutors later indicted him separately for that same conduct. The new indictment was permitted because using conduct only as a sentencing factor does not constitute punishment that triggers double jeopardy.
Delilah Duran was acquitted of drug charges in criminal court. The government then pursued civil forfeiture of her property tied to the same conduct. The forfeiture action proceeded because jeopardy does not attach in ordinary civil proceedings and therefore creates no double jeopardy bar.
Jeopardy attaches when the jury is empaneled and sworn. Once attached, the defendant gains protection against retrial for the same offense absent manifest necessity or consent.
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No. The Blockburger same-elements test determines whether two offenses are the same for double jeopardy purposes. If each offense requires proof of an element the other does not, successive prosecution is permitted even when the underlying conduct overlaps.
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Yes. The dual-sovereignty doctrine permits each state or the federal government to prosecute the same acts under its own laws. A prior acquittal in one jurisdiction does not bar prosecution by another sovereign.
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No. A proceeding before a tribunal without jurisdiction over the offense is treated as a nullity for double jeopardy purposes. The later prosecution in a court of competent jurisdiction may proceed.
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…of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury-trial guarantee and the Double Jeopardy Clause of the Fifth Amendment. In the federal system it also would be unconstitutional to prohibit a President from deciding, as an act of executive clemency, to reprieve one sentenced to death.…