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Double Jeopardy

We’ve all heard the phrase on TV or in movies, but what does it mean, legally? "Double Jeopardy" protections in the U.S. Constitution keep criminal defendants from facing prosecution more than once for the same offense (with a few exceptions). Below you will find information on "Double Jeopardy" protections, eligibility, and more.

Double Jeopardy Protection Basics

The Double Jeopardy clause in the Fifth Amendment to the U. S. Constitution provides that "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." Most states have the same guarantee for defendants appearing in state court. Even in states that do not expressly guarantee this right in their state constitutions, the doctrine of incorporation ensures that the Bill of Rights applies to state and local governments, therefore the protection against double jeopardy must still be afforded to criminal defendants.

There are several reasons for double jeopardy protection:

  • To prevent the government from using its superior resources to wear down and erroneously convict innocent persons;
  • To protect individuals from the financial, emotional, and social consequences of successive prosecutions;
  • To preserve the finality and integrity of criminal proceedings, which would be compromised if the government were allowed to ignore verdicts it did not like;
  • To restrict prosecutorial discretion over the charging process; and
  • To eliminate judicial discretion to impose cumulative punishments otherwise not clearly prohibited by law.

State courts decisions on double jeopardy can provide more protection for defendants than the U.S. Constitution, but not less.

Eligibility for Double Jeopardy Protection

Only certain types of criminal cases qualify for double jeopardy protection. If a particular proceeding does not place an individual in jeopardy, then subsequent proceedings against that individual for the same conduct are not prohibited. Although the text of the Fifth Amendment suggests that double jeopardy protection extends only to proceedings threatening "life or limb," the Supreme Court has established that the right is not limited to capital crimes or corporeal punishment. Instead, protection extends to all felonies, misdemeanors, and juvenile delinquency adjudications, regardless of the punishments they prescribe.

It is not just a question of which proceedings are subject to double jeopardy, but also when jeopardy begins, or attaches. This question is crucial because actions taken by the government before jeopardy attaches, such as dismissing the indictment, will not prevent later proceedings against the same person for the same offense. Once jeopardy has attached, the full array of Fifth Amendment protections against multiple prosecutions and multiple punishments takes hold.

For jury trials, jeopardy attaches when the jury is sworn. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn in. If a defendant enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.

It is just as important to determine when double jeopardy protection ends as when it begins, but it can be little more complicated. Once jeopardy has ended, the government cannot detain someone for additional court proceedings on the same issue. Jeopardy can terminate in four instances:

  • After a jury’s verdict of acquittal;
  • After a trial court’s dismissal;
  • After a trial court grants a mistrial; and
  • On appeal after conviction.

Double jeopardy protection only defends individuals against prosecution for the same offense, but what constitutes the same offense? State and federal courts apply a multitude of tests to determine whether the same facts have already been litigated, whether the “actual evidence” has already been presented in court, whether all the criminal acts were part of the “same transaction,” or whether the defendant is being re-prosecuted for the “same conduct.”

Additional Information

As you can see, double jeopardy protections are a complex and potentially confusing area of criminal law. If you would like assistance, you can meet with a criminal attorney to discuss your case. You can also visit FindLaw’s criminal law section if you would like more general information on this topic.

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