Double Jeopardy

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Double jeopardy is a procedural defense that prevents a defendant from being tried multiple times on the same or similar charge, following a legitimate acquittal or conviction. The concept of double jeopardy is a longstanding norm in Western legal thought, having roots in both Greek and Roman Law.[1] As a result, the tradition of double jeopardy is present in a great number of modern legal regimes in one form or another. Many countries have codified protections against double jeopardy as a constitutional right, including Canada, India, Israel, Mexico and the United States.

In the common law, a defendant may enter a preemptory plea of double jeopardy, indicating to the court that the defendant had previously been acquitted or convicted of the same offense. Once the issue is raised, evidence will be presented in order to rule as a preliminary matter whether the plea is substantiated and, if it is, the projected trial will not proceed.

Generally, protections against double jeopardy prevent a person from being convicted twice for the same crime based on the same conduct. If a person robs a bank, he cannot be convicted of robbery twice for the same actions. Similarly, a defendant cannot be twice convicted on two different crimes arising from the same conduct unless they are significantly different or designed to prohibit different forms of conduct. For instance, a person may not be convicted of both murder and manslaughter for the same killing, but he can be convicted of both murder and robbery if the murder arose out of said robbery. Double jeopardy is related to the theory of collateral Estoppel, which prevents the same parties from relitigating facts that have already been established by a final judgment.[2]

However, double jeopardy does not generally prohibit the government from bringing a civil action against a defendant for the same offense, even after the defendant is acquitted of the crime. Additionally, acquittal in one jurisdiction does not necessarily bar trial in another for the same offense.

Application in the United States

The Fifth Amendment to the U.S. Constitution provides in part, "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb[.]"[3]. This portion of the Fifth Amendment is known as the Double Jeopardy Clause, which prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion, or imposing more than one punishment for a single offense. Although the Fifth Amendment initially applied only to the federal government, the U.S. Supreme Court ruled in Benton v. Maryland that the Double Jeopardy Clause applies to the states as well through the Fourteenth Amendment.[4] Following Benton, no state may provide its residents with less double jeopardy protection, either by way of state constitution or statute, than that provided by the Fifth Amendment.

When Jeopardy Attaches and Terminates

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

Once jeopardy terminates, the defendant can no longer be haled into court for additional proceedings on the same matter without raising double jeopardy questions. Jeopardy will terminate upon a jury's verdict of acquittal. The verdict may not be overturned on appeal even in the face of overwhelming proof of a defendant's guilt as a measure meant to entrust a jury with the power to nullify prosecutions tainted by police, prosecutorial or judicial misconduct.

Similarly, assuming jeopardy has attached, a subsequent dismissal granted by the trial court for errors, defects or a lack of evidence in the trial terminates jeopardy and serves as an absolute barrier to prosecution. The U.S. Supreme Court has held, however, that dismissal for reasons unrelated to a defendant's guilt or innocence will not bar future prosecution and does not raise double jeopardy issues.[5] Jeopardy also terminates if a mistrial is granted, normally done when jurors fail to reach a unanimous verdict or when it has become impracticable to finish a case. Importantly though, either a dismissal or a mistrial at the defendant's request or consent will not terminate jeopardy and thus will not preclude retrial.

Jeopardy may also terminate upon a defendant's appeal after a conviction. Upon a reversal for insufficient evidence, the defendant is treated as acquitted and no retrial is allowed. Reversals on other grounds, including defective search warrants and unlawful seizure of evidence, will not terminate jeopardy and will still leave open the possibility of retrial.

Jeopardy will not attach, even in light of a final judgment, if the earlier trial is proven to be a fraud or scam. In such instances, retrial is allowed and no double jeopardy concerns are raised. In Harry Aleman v. The Honorable Judges of the Circuit Court of Cook County, the Seventh Circuit denied Aleman's petition for habeas corpus and affirmed the lower court's murder charges against him despite a prior acquittal on the same charges.[6] Aleman successfully bribed a Cook County Circuit Judge to acquit him of murder charges in 1977, but a grand jury returned a second indictment against him on the same murder charge in 1993 after evidence of the bribery surfaced. The Seventh Circuit held that the first murder trial against Aleman was a sham, and thus created a situation in which Aleman was never in jeopardy in the first place. As a result, there was no double jeopardy issue and the second murder trial was allowed to proceed.

What Constitutes the Same Offense: The Blockburger Test

In any double jeopardy litigation, the court must determine whether or not successive prosecutions are geared toward the same offense. At common law, a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts were committed during that episode. Modern law however has moved away from this one-trial-per-incident approach and allows for prosecution of separate crimes as applied to the same set of facts.

The U.S. Supreme Court set the double jeopardy "same offense" standard in Blockburger v. United States, in which it wrote that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of an element that the other offenses do not require.[7] Blockburger requires courts to examine the substantive elements of each offense as delineated by statute, without regard to the evidence presented later at trial. The prosecution has the burden of demonstrating that each offense to be charged has at least one mutually exclusive element from the other offenses.

Many state courts employ the "same transaction" analysis for determining double jeopardy issues. The "same transaction" analysis requires the prosecution to join all offenses that were committed during a continuous interval, share a common factual basis, and display a single goal or intent. Although no longer in use by federal courts, some state courts may also employ the "same-conduct" analysis, under which the government is forbidden to prosecute an individual twice for the same criminal behavior, regardless of the actual evidence introduced at trial or the statutory elements of the offense.[8]

Additionally, a substantive crime and a conspiracy to commit that crime are not considered the "same offense" for double jeopardy purposes.[9]

The "Separate Sovereigns" Exception

The "separate sovereign" exception to double jeopardy arises from the system of federalism in the United States, in which states are sovereigns with plenary power that have relinquished a number of enumerated powers to the federal government. Double jeopardy will only attach to prosecutions for the same criminal act by the same sovereign, but as separate sovereigns, both the federal and state governments can bring separate prosecutions for the same act. The "separate sovereignty" doctrine was highlighted in the Rodney King Beating cases in the early 1990s. Two Los Angeles police officers were convicted in federal court for committing civil rights abuses against Rodney King during the Los Angeles riots even though they had previously been acquitted in state court for excessive use of force. The Ninth Circuit affirmed the District Court's ruling and held that where the defendant has violated the laws of two sovereigns, even if by a single act, he has committed two distinct offenses punishable by both authorities.[10]

The U.S. Department of Justice has developed an internal restriction on pursuing a prosecution after state prosecution has failed, and will only pursue a second prosecution for "compelling reasons" after the prosecutor has obtained prior approval from the Assistant Attorney General, a restriction known as the "Petite Policy."[11] A criminal defendant should not rely on this policy, however, as a total restriction against federal prosecution.

Similarly, the "separate sovereigns" doctrine allows for two states to prosecute for the same crime given proper jurisdiction in both locations. For instance, if a man commits a crime that occurs across the boundaries of two states, both states are allowed to prosecute the same charge on the same criminal acts.[12] Successive prosecutions by a state and one of its political subdivisions, such as a county, city or village, are not permitted. Similarly, there will be no double jeopardy issues raised by dual prosecutions in the United States and by a foreign sovereign, although issues of diplomacy, international treaties and extradition agreements may be implicated in such proceedings.

Civil v. Criminal Proceedings

Double jeopardy does not apply when subsequent charges are civil in nature rather than criminal, as the two charges seek to redress different injuries and involve differing legal standards.

Civil charges are meant to make whole a victim or the victim's relatives and are in fact remedial in nature. By comparison, criminal proceedings are designed to serve the purposes of deterrence and retribution against criminal conduct.[13] Civil charges also carry a lesser standard of proof, wherein offences need only be proven by a preponderance of the evidence, while criminal actions must be proven beyond a reasonable doubt.

One recent example of dual civil and criminal proceedings was the multiple proceedings brought against O.J. Simpson relating to the deaths of Nicole Brown Simpson and Ronald Lyle Goldman. While the State of California acquitted O.J. Simpson on the murder charge of his former wife and her friend, he was found liable for their deaths in three separate wrongful death civil suits filed by surviving members of their families and was forced to pay large settlements to them as a result.[14]

While civil penalties generally will not run afoul of the Double Jeopardy Clause, in rare circumstances a civil fine might be so extreme that it rises to the level of punitive in nature and thus is blocked by the Fifth Amendment. In United States v. Halper, for example, the U.S. Supreme Court prohibited the federal government from seeking a $130,000 civil penalty against a man who previously had been sentenced to prison for the same offense of filing $585 worth of false Medicare claims.[15] The Court concluded that the gross disparity between the civil fine imposed and society's economic loss reflected a punitive aim instead of merely a remedial one. It is important to note however that in Halper, the civil fine was being imposed by the government, and it is unlikely that a private party seeking additional damages in similar circumstances would raise any Double Jeopardy Clause issues.

International Examples of the Double Jeopardy Clause

  • China - In China, there is no equivalent to the Double Jeapardy Clause and Procurators may appeal a defendant's aquittal.
  • Tanzania - "A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence."[16]
  • Uganda "Person not to be punished twice for same offence. - person shall not be punished twice either under this Code or under any other law for the same offence.[17]
  • Sri Lanka - "No person to be tried twice for the same offence" - [18]
  • "Kenya" - The double jeopardy provisions protect an accused from being tried again on the same or similar charges following an acquittal or conviction. The principal is embodied in Article 50(2)(o) of the Constitution and the Criminal Procedure Code, Sections 138-142.

However, by virtue of Section 139 through Section 141 of the CPC, a person may be charged and tried again: a) for a separate offence arising from the same set of facts as those of the crime for which the accused was previously convicted or acquitted. b) for consequences which arise after a conviction or acquittal, if they were not known at the time of conviction or acquittal. c) if the court that tried the accused in the first instance was not competent to try the offence for which he is subsequently charged.

See Defenses, Rights of the Accused and Sentencing


  2. See, e.g., Ashe v. Swenson, 397 U.S. 436 (1970), available at (stating that collateral estoppel prevented prosecuting an individual for robbing one of six men during a poker game when at a prior trial he was acquitted of robbing one of the other players).
  3. U.S. Const amend. V, available at
  4. Benton v. Maryland, 395 U.S. 784 (1969), available at
  5. See United States v. Scott, 437 U.S. 82 (1978), available at
  6. Aleman v. The Honorable Judges of the Circuit Court of Cook County, 138 F.3d 302 (1998), available at
  7. Blockburger v. United States, 284 U.S. 299 (1932), available at
  8. Grady v. Corbin, 495 U.S. 508 (1990), available at The Court later overruled Grady in United States v. Dixon, 509 U.S. 688 (1993), available at, for failing to satisfy the requirements of the Blockburger test.
  9. See United States v. Felix, 503 U.S. 378 (1992), available at
  10. See United States v. Koon, 34 F.3d 1416 (9th Cir. 1994), aff'g 833 F. Supp. 769 (C.D. Cal. 1993), available at
  11. See Petite v. United States, 361 U.S. 529 (1960), available at
  12. See Heath v. Alabama, 474 U.S. 82 (1985), available at (holding that the defendant could be prosecuted in both Georgia and Alabama for the same kidnapping and murder charges).
  13. See generally
  14. See, e.g.,
  15. United States v. Halper, 490 U.S. 435 (1989), available at
  16. Tanzania Penal Code Section 21
  17. Uganda Penal Code Section 18"
  18. Sri Lanka Code of Criminal Procedure Section 314