Also known as: double-jeopardy prohibition · double jeopardy · double-jeopardy · double jeopardy clause
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection barring the government from prosecuting a person twice for the same offense once jeopardy has attached in the first proceeding.
Doris Duffy was tried and convicted in federal court for accepting bribes as a procurement officer. After the verdict, prosecutors sought to charge her separately with the lesser offense of receiving an unlawful gratuity based on the identical payments. The court dismissed the new charge because the prior prosecution for the greater offense had already placed her in jeopardy for that conduct.
Damian Decker was acquitted in state court on charges of armed robbery. Federal prosecutors then attempted to indict him for the same robbery under federal law. The court dismissed the federal case, holding that the Double Jeopardy Clause applies equally to state proceedings through the Fourteenth Amendment.
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Daniel Diaz faced bribery charges in federal court. A jury was empaneled and sworn before a nationwide shutdown forced the judge to discharge the panel. When the government later sought retrial before a new jury, the court granted dismissal because jeopardy had attached and no manifest necessity justified the discharge.
Dwight Dorsey was convicted in State A for data theft from servers located in both states. State B then charged him with identical conduct under its own statutes. The court denied dismissal, explaining that each state acts as a separate sovereign and may prosecute the same acts without violating the prohibition.
Dustin Donovan moved to dismiss an indictment after the prosecution negligently withheld exculpatory evidence. The court granted the motion without resolving factual guilt. Prosecutors later refiled the charges, and the court allowed the new proceeding because the earlier termination did not constitute an acquittal on the merits.
Diane Dawson received an enhanced sentence for one offense based on prior conduct. Prosecutors later indicted her separately for that same conduct as a distinct crime. The court rejected her double jeopardy claim because using the conduct only as a sentencing factor did not constitute prior punishment for double jeopardy purposes.
Jeopardy attaches when the jury is empaneled and sworn. Once that occurs, the constitutional bar on successive prosecutions is triggered unless the first proceeding ends in a manner consistent with double jeopardy principles such as manifest necessity or defendant consent.
Supporting sources
Yes. Once jeopardy attaches in a prosecution for a greater offense, the prohibition prevents the state from later prosecuting a lesser included offense based on the same conduct because the elements of the lesser offense were necessarily resolved in the first trial.
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No. When a jury has been empaneled and sworn, a mistrial declared without the defendant's consent and without true manifest necessity bars retrial. Prosecutorial negligence in failing to disclose evidence does not meet the manifest necessity standard.
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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.…