Also known as: double jeopardy protection · double jeopardy · double jeopardy clause · double jeopardy doctrine
Written by attorneys · grounded in primary & secondary sources — see below
Constitutional safeguards that bar successive prosecutions or multiple punishments for the same offense after jeopardy has attached. The protection extends to state proceedings and turns on whether each offense requires proof of an element the other does not.
David Dawson was tried and acquitted of felony assault after a jury found he did not cause serious injury. Prosecutors later charged him with misdemeanor battery arising from identical facts. The court dismissed the battery prosecution because the prior acquittal on the greater offense precluded the lesser included charge.
Dwight Dorsey was acquitted in federal court of drug trafficking. State prosecutors then filed identical charges in state court. The state court dismissed the case, applying the same double jeopardy bar that would govern a federal retrial.
Select any source to read its text and confirm it supports the definition.
Darrell Duncan was acquitted of one offense. Prosecutors later used the same conduct as a sentencing enhancement in a separate indictment. The court permitted the enhancement because using acquitted conduct as a sentencing factor does not constitute a second punishment.
Deanna Davenport was convicted in state court after an earlier federal acquittal on overlapping conduct. She argued the state proceeding violated fundamental fairness. The court applied the federal double jeopardy standard to bar the second trial.
Diego Duarte elected to sever multiple charges that could have been tried together. After acquittal on the first severed count, prosecutors proceeded on the remaining charges. The court rejected the double jeopardy claim because the defendant consented to separate trials.
Dolores Diaz received a life sentence after a jury deadlock on aggravating factors. On retrial the state sought the death penalty. The court permitted the capital prosecution because the first proceeding had not produced an acquittal-like finding on the aggravating circumstances.
Jeopardy attaches when the jury is empaneled and sworn. A mistrial declared after that point without manifest necessity or defendant consent bars retrial on the same charge.
Supporting sources
No. Under the same-elements test, offenses are distinct if each requires proof of an element the other does not, even when both arise from the same conduct.
Supporting sources
Yes. The dual-sovereignty doctrine permits each state to prosecute acts that violate its own laws, treating each state as an independent sovereign.
Supporting sources
No. A judgment from a tribunal without authority to adjudicate the offense is a nullity and does not trigger double jeopardy protection.
Supporting sources
Retrial is permitted when reversal rests on evidentiary error rather than insufficiency of the evidence or an acquittal on the merits.
Supporting sources
…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.…