Also known as: double jeopardy · double-jeopardy doctrine · Fifth Amendment double jeopardy
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that bars the government from prosecuting or punishing an individual more than once for the same offense after jeopardy has attached. The doctrine requires that each offense contain an element the other does not before successive prosecutions may proceed. It also incorporates limits on retrial after mistrial, acquittal, or reversal for certain errors.
Diego Duarte was tried and acquitted on a charge of directing illegal waste dumping after a jury found an upstream plant caused the contamination. The state then charged him with conspiracy to conceal evidence from the same incident. Because the first prosecution resolved the greater offense, the doctrine prevents the later lesser-included prosecution arising from identical conduct.
Dominic Drake faced state charges for data theft after a federal court had already adjudicated the same conduct. The doctrine applies because the Fifth Amendment protection extends to the states through the Fourteenth Amendment and blocks the second prosecution by a different sovereign within the federal system.
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Doris Duffy requested separate trials on multiple environmental counts that could have been joined. After acquittal on the first severed charge, the state pursued the remaining counts. The doctrine does not bar the later trials because her consent to severance prevents any claim of issue preclusion.
Danielle Dixon obtained reversal of her conviction because the trial court had wrongly admitted certain records. The state then retried her on the same charges using different evidence. The doctrine permits the retrial because reversal for evidentiary error does not equate to an acquittal on the merits.
Darius Dixon moved to dismiss mid-trial on grounds that did not resolve factual guilt. The court granted the motion. The doctrine permits retrial because termination at the defendant's behest without an acquittal on the merits does not bar reprosecution.
Dylan Duffy received an enhanced sentence in one case based on prior conduct that later formed the basis of a separate indictment. The doctrine does not bar the new charges because using the conduct only as a sentencing factor does not constitute prior punishment for double jeopardy purposes.
Jeopardy attaches when the jury is empaneled and sworn. Once attached, the defendant gains protection against retrial for the same offense unless the termination qualifies as an acquittal on the merits or meets an exception such as manifest necessity.
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No. A proceeding before a tribunal without jurisdiction over the offense or the defendant does not count as a former prosecution. Later charges in a court of competent jurisdiction may therefore proceed without violating the doctrine.
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Yes. The doctrine permits successive prosecutions by different sovereigns such as two states or the federal government and a state because each sovereign may enforce its own laws independently.
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Retrial is barred when the mistrial results from prosecutorial negligence that does not rise to manifest necessity. The defendant retains the protection once jeopardy has attached unless the defendant consented to the mistrial or an exception applies.
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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…