Also known as: ne bis in idem · non bis in idem · double jeopardy
Written by attorneys · grounded in primary & secondary sources — see below
A principle of criminal procedure that bars the government from prosecuting a person more than once for the same offense after jeopardy has attached in a court of competent jurisdiction.
Noelle North stood trial in federal court for murder after a shooting during a robbery. The jury acquitted her after finding the evidence failed to prove she fired the fatal shot. Prosecutors later filed a manslaughter charge based on the identical conduct and evidence. The court dismissed the new charge because jeopardy had already attached and terminated on the greater offense arising from the same facts.
Naveen Nanda was acquitted in state court on a felony assault charge after a full trial. State prosecutors attempted a second trial on the same facts by recharacterizing the offense under a different statutory label. The court rejected the second prosecution because the Fifth Amendment bar applies to the states through the Fourteenth Amendment and prevents successive trials for the same conduct.
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Neville Norton faced trial on embezzlement charges in state court. After the jury was sworn and opening statements concluded, the judge declared a mistrial due to prosecutorial error. The state sought to retry him on the identical charges. The court dismissed the retrial because jeopardy had attached and the mistrial did not qualify as a proper termination that would permit a second prosecution.
Nora Nash was convicted in state court and appealed on the ground that a second trial after reversal would violate double jeopardy. The state argued the protection did not extend to its courts. The reviewing court applied the federal standard because the principle is fundamental and incorporated against the states, barring the successive prosecution.
Nina Nielsen was acquitted of a substantive drug offense. Prosecutors then charged her with conspiracy to commit the same drug crime based on the identical underlying acts. The court dismissed the conspiracy indictment because the prior acquittal on the substantive count barred relitigation of the same conduct under a different theory.
Nicholas Nunez paid a civil tax penalty after an administrative proceeding. Federal prosecutors later filed criminal charges for the same reporting failure. The court denied dismissal because the prior civil sanction did not constitute criminal jeopardy and therefore did not bar the subsequent prosecution.
No. Under the same-elements test, two offenses are distinct if each requires proof of an element the other does not, even when the charges arise from the same conduct. The added agreement element in a conspiracy charge therefore permits a second prosecution after acquittal on a substantive offense.
Jeopardy attaches when the jury is empaneled and sworn. Once attachment occurs, a subsequent prosecution for the same offense is barred unless the first proceeding terminated properly through acquittal, conviction, or a mistrial supported by manifest necessity.
No. A proceeding before a tribunal without authority over the offense or defendant does not count as a former prosecution that triggers the bar. The later case in a court of proper jurisdiction may proceed.
Yes. Each state may prosecute the identical acts under its own laws because the dual-sovereignty doctrine treats each state as an independent prosecuting authority. A prior acquittal in one state therefore does not bar prosecution in another.
Yes. Retrial is allowed after reversal of a conviction due to erroneous admission of evidence, even if the remaining evidence would have been insufficient. The reversal does not trigger the double jeopardy bar.
…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…