Also known as: twice in jeopardy · 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 once jeopardy has attached in a prior proceeding.
Tori Taylor faced federal charges for an infamous crime. Prosecutors sought to proceed without a grand jury presentment. The court dismissed the case because the Fifth Amendment requires indictment before any person answers for such an offense.
Trevor Tate was prosecuted for a greater offense and acquitted. The state then charged him with a lesser included offense arising from identical conduct. The court dismissed the new charge because jeopardy had already attached and barred the successive prosecution.
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Theresa Tucker was tried in state court for conduct that had already resulted in a federal acquittal. She moved to dismiss on double jeopardy grounds. The court applied the Fifth Amendment bar through the Fourteenth Amendment and dismissed the state charges.
Tamara Tan received a life sentence after a capital trial. The state sought to retry her for the death penalty on the same conduct. The court permitted the retrial because the initial proceeding had not produced an acquittal-like finding on the death penalty.
Tyler Taylor faced criminal charges after a civil eminent domain proceeding resolved related conduct. He argued the prior adjudication barred the prosecution. The court rejected the claim because the civil action did not place him in jeopardy of life or limb.
Thomas Thompson had prior conduct used to enhance a sentence. Prosecutors later filed a separate indictment based on that same conduct. The court refused to dismiss the new charges because using conduct as a sentencing factor does not place a defendant in jeopardy for double-jeopardy purposes.
Jeopardy attaches when the jury is empaneled and sworn. A mistrial declared without manifest necessity after attachment bars retrial on the same offense.
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Yes. Once jeopardy attaches and the defendant is prosecuted for the greater offense, the Double Jeopardy Clause prohibits a later prosecution for the lesser included offense based on the same conduct.
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Yes. The Fifth Amendment protection is incorporated through the Fourteenth Amendment, so state courts must apply the same bar on successive prosecutions as federal courts.
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No. Jeopardy generally does not attach in civil proceedings, so a civil forfeiture or administrative action following or preceding criminal charges does not trigger the constitutional bar.
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The defendant cannot later claim double jeopardy bars the remaining charges. Consent to severance prevents the first trial from triggering issue preclusion against subsequent trials.
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…the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private…