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Double Jeopardy

Created by FindLaw's team of legal writers and editors.

We've all heard the phrase "double jeopardy" on TV or in movies, but what does it mean, legally? Protections against double jeopardy keep criminal defendants from facing prosecution more than once for the same offense (with a few exceptions). Below you will find information on the double jeopardy rule, eligibility and more.

Double Jeopardy Basics

The U.S. Constitution's Fifth Amendment contains a Double Jeopardy Clause, which says that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Most state constitutions similarly protect individuals from being tried twice for the same crime. For criminal defendants, this is a crucial constitutional right.

For example, Joshua is tried for burglary and is acquitted. The prosecution is unhappy with the outcome but is constitutionally barred from re-trying him for the same offense.

Even in states that do not expressly prohibit double jeopardy, the protection must still be afforded, because the Fifth Amendment applies not only to the federal government but also to the states via the doctrine of incorporation.

There are several reasons behind the rule against double jeopardy. However, some of the most important reasons include the need:

  • To preserve the finality of criminal proceedings, which would be compromised if the government were allowed to ignore verdicts it did not like;
  • To impose limits on prosecutors' power; and
  • To protect individuals from the financial and emotional toll of repeated prosecutions.

States can provide greater protection against multiple prosecutions than the U.S. Constitution does, but not less.

Eligibility for Double Jeopardy Protection

Although the text of the Fifth Amendment refers to being placed twice in jeopardy of "life or limb," the Supreme Court has said that protections against re-prosecution for the same crime extend to all felonies, misdemeanors and juvenile delinquency adjudications, regardless of the potential punishment.

Nonetheless, there are some things to keep in mind. First, if a defendant was never previously in legal "jeopardy," then subsequent prosecution is not prohibited. For instance, if prosecutors take certain actions before jeopardy begins, or attaches, such as dismissing the indictment, nothing will prevent them from later trying the same person for the same offense.

Once an individual has been placed in legal jeopardy and the jeopardy has ended, the government cannot continue to pursue a prosecution against the person for the same crime, because this would violate the rule against double jeopardy. Jeopardy will always end after a jury's verdict of acquittal, and sometimes it also ends after certain other events, such as the trial judge's declaration of a mistrial.

Finally, the double jeopardy rule applies to re-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 alleged criminal acts were part of the "same transaction," or whether the defendant is being prosecuted a second time for the "same conduct."

Learn More About Double Jeopardy by Talking to an Attorney

The right not to be re-prosecuted for the same crime is a fundamental constitutional protection, and it could keep you out of jail. However, this is a complex area of criminal law. To find out whether you can add double jeopardy to your defenses, reach out to a local criminal defense attorney.

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