double jeopardy

n.
The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted.

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The Double Jeopardy Clause of the Fifth Amendment states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The principle is one of the oldest in Western civilization, having roots in ancient Greek and Roman law. Nevertheless, the clause is one of the least understood in the Bill of Rights, and the Supreme Court has done little to remove the confusion.

The Court decided relatively few double jeopardy cases until after 1969, when, in Benton v. Maryland, it held that the Fifth Amendment's double jeopardy provision is incorporated in the Fourteenth Amendment and applies to the states as well as the federal government (see Incorporation Doctrine).

As a general proposition, the Double Jeopardy Clause applies only to criminal cases and consists of three separate constitutional protections. First, it protects against a second criminal prosecution for the same offense after acquittal. Second, it protects against a subsequent prosecution for the same offense after conviction. Finally, it protects against multiple punishments for the same offense.

The simplicity of these general statements masks the real confusion resulting from their application. As Judge Monroe McKay observed, terms like “acquittal,” “multiple punishments,” and “same offense” prompt “the most vehement disagreement among the Justices” (McKay, 1983, pp. 1–2). The Court has struggled to give meaning to these terms.

Difficulties arise in determining when a new prosecution is for the “same offense.” The issue is presented when the same criminal act or transaction violates two separate statutes. In Grady v. Corbin (1990), the Court explained that in such circumstances the critical inquiry should focus on the conduct the prosecution will attempt to prove in the second prosecution, not the evidence that it will use to prove that conduct. For example, if someone has an automobile accident and is convicted of driving while intoxicated, that person cannot then be prosecuted for criminally negligent homicide arising from the same accident if the state intends to use the drunk driving conviction to prove the homicide charge. On the other hand, the homicide prosecution will not be barred if the state uses other conduct (such as driving too fast) to prove the homicide charge.

The Court has also developed rather complicated rules to resolve the issue of whether a defendant has been “put twice in jeopardy.” The protection of the clause applies only in instances where jeopardy “has attached.” In a case tried by a judge rather than by a jury, jeopardy attaches after the first witness has been sworn to testify. In a case tried by a jury, jeopardy attaches after the jury has been empaneled. Finally, where a defendant enters a plea, jeopardy attaches when the court accepts the plea.

There are, however, a number of exceptions to these propositions. If the first prosecution resulted in a mistrial, a subsequent prosecution is permitted if the defendant consented to the mistrial or if there was “manifest necessity” for the mistrial. Manifest necessity would be found, for example, where a mistrial was declared because the indictment contained a defect that would have been a basis for reversing a conviction.

Similarly, a new prosecution is permitted if a conviction is reversed on appeal. If the defendant is then reconvicted, however, a higher sentence may be imposed at the second trial. A jury verdict of not guilty, however, may not be appealed by the prosecutor and bars a second prosecution. The rules are more complex when a judge, rather than a jury, decides the case. Generally, a dismissal or acquittal by a judge bars reprosecution for the same offense. However, if the dismissal was requested by the defendant and was for a reason that would prevent prosecution, the prosecutor may appeal. If the dismissal is reversed, the defendant may be prosecuted again.

Finally, double jeopardy does not prevent a separate sovereignty from prosecuting again for the same offense. In Heath v. Alabama (1985), the Supreme Court held that federal prosecution is not barred by a previous state prosecution for the same offense.

Commentators have argued that the continuing confusion surrounding double jeopardy results from the Court's failure to articulate the precise values served by the clause. At least five different values have been suggested: (1) preventing the government from using its superior resources to wear down an innocent defendant, (2) preserving the integrity of jury verdicts, (3) protecting the defendant's interest in finality, (4) limiting excessive prosecutorial discretion in charging individuals, and (5) preventing imposition of sentences not authorized by the legislature. A coherent, sound approach to double jeopardy will not be developed until the Court identifies the values embedded in the Double Jeopardy Clause.

Bibliography

• Monroe McKay, Double Jeopardy: Are the Pieces the Puzzle? Washburn Journal 23 (1983): 1–23

— Daan Braveman

The 5th 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.” This provision is known as the double jeopardy clause. It protects individuals against repeated prosecution by the government for a single alleged crime. In Benton v. Maryland (1969), the Supreme Court decided that the 5th Amendment's double jeopardy clause is incorporated by the due process clause of the 14th Amendment and thereby applicable to the states.

The double jeopardy clause protects an individual in three ways. First, it protects a person from being prosecuted a second time for the same offense after being declared innocent of this offense. Second, it protects a person from a second prosecution for the same crime after conviction for this offense. Third, in addition to prohibiting more than one prosecution, the double jeopardy clause protects an individual from being punished more than once for the same crime.

The great importance of the double jeopardy clause of the Constitution was emphasized by Justice Hugo L. Black in Green v. United States (1957): “The underlying idea…is that the State with all its reSources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity; as well as enhancing the possibility that even though innocent he may be found guilty.”

See also Benton v. Maryland

This entry contains information applicable to United States law only.

A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense. The evil sought to be avoided by prohibiting double jeopardy is double trial and double conviction, not necessarily double punishment.

The Fifth Amendment to the U.S. Constitution provides, "No person shall … be subject for the same offence [sic] to be twice put in jeopardy of life or limb." This provision, known as the Double Jeopardy Clause, 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. Each of the fifty states offers similar protection through its own constitution, statutes, and common law.

Five policy considerations underpin the double jeopardy doctrine: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments not authorized by the legislature.

The concept of double jeopardy is one of the oldest in Western civilization. In 355 b.c., Athenian statesman Demosthenes said, "[T]he law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian I in a.d. 533. The principle also survived the Dark Ages (a.d. 400-1066), notwithstanding the deterioration of other Greco-Roman legal traditions, through canon law and the teachings of early Christian writers.

In England, the protection against double jeopardy was considered "a universal maxim of the common law" (United States v. Wilson, 420 U.S. 332, 340, 95 S. Ct. 1013, 1020, 43 L. Ed. 2d 232 [1975]) and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). Nonetheless, the English double jeopardy doctrine was extremely narrow. It was afforded only to defendants accused of capital felonies, and applied only after conviction or acquittal. It did not apply to cases dismissed prior to final judgment, and was not immune from flagrant abuse by the Crown.

The American colonists, who were intimately familiar with Coke, Blackstone, and the machinations of the Crown, expanded the protection against double jeopardy, making it applicable to all crimes. Yet James Madison's original draft of the Double Jeopardy Clause was perceived by some as too broad. It provided, "No person shall be subject … to more than one punishment or one trial for the same offense" (emphasis added) (United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897 104 L. Ed. 2d 487 [1989]). Several House members objected to this wording, arguing it could be misconstrued to prevent defendants from seeking a second trial on appeal following conviction. Although the language was later amended by the Senate to address this concern, the final version ratified by the states left other questions for judicial interpretation.

Double jeopardy litigation revolves around four central questions: In what type of legal proceeding does double jeopardy protection apply? When does jeopardy begin, or, in legal parlance, attach? When does jeopardy terminate? What constitutes successive prosecutions or punishments for the same offense? Although courts have answered the second and third questions with some clarity, they continue struggling over the first and last.

Where Jeopardy Applies

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

In Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the Supreme Court ruled that the federal Double Jeopardy Clause is applicable to both state and federal prosecutions. Prior to this ruling, an individual accused of violating state law could rely only on that particular state's protection against double jeopardy. Some states offered greater protection against double jeopardy than did others. The Supreme Court, relying on the doctrine of incorporation, which makes fundamental principles in the Bill of Rights applicable to the states through the Equal Protection Clause of the Fourteenth Amendment, said this was not permissible. The right against double jeopardy is so important, the Court concluded, that it must be equally conferred upon the citizens of every state. Under this decision, no state can provide its residents with less protection against double jeopardy than that offered by the federal Constitution.

The Supreme Court has also held that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude ordinary civil or administrative proceedings against a person who has already been prosecuted for the same act or omission. Nor is prosecution barred by double jeopardy if it is preceded by a final civil or administrative determination on the same issue.

Courts have drawn the distinction between criminal proceedings on the one hand, and civil or administrative proceedings on the other, based on the different purposes served by each. Criminal proceedings are punitive in nature and serve two primary purposes: deterrence and retribution. Civil proceedings are more remedial; their fundamental purpose is to compensate injured persons for any losses incurred. Because civil and criminal remedies fulfill different objectives, the government may provide both for the same offense.

The multiple legal proceedings brought against O. J. (Orenthal James) Simpson in the death of Nicole Brown Simpson and Ronald Lyle Goldman illustrate these various objectives. The state of California prosecuted Simpson for the murders of his former wife and her friend. Despite Simpson's acquittal in the criminal case, three civil suits were filed against him by the families of the two victims. The criminal proceedings were instituted with the purpose to punish Simpson, incarcerate him, and deter others from similar behavior. The civil suits were intended to make the victims' families whole by compensating them with money damages for the losses they suffered.

The distinctions between criminal and civil proceedings and between punitive and remedial remedies may appear semantic, but they raise real legal issues. Courts have recognized that civil remedies may advance punitive goals. When they do, double jeopardy questions surface. For example, a civil forfeiture or civil fine, though characterized by the legislature as remedial, becomes punitive when the value of the property seized or the amount of the fine imposed is "overwhelmingly disproportionate" to the loss suffered by society (Halper). This principle was exemplified when the Supreme Court prohibited the federal government from seeking a $130,000 civil penalty against a man who had previously been sentenced to prison for the same offense, filing $585 worth of false Medicare claims (Halper). The Court concluded that the gross disparity between the fine imposed and the economic loss suffered by society reflected a punitive remedial aim.

Conversely, many courts have ruled that punitive damages awarded in civil suits are not sufficiently criminal for double jeopardy purposes when the plaintiff seeking those damages is a private party, not the state. This ruling can best be explained by noting that the Bill of Rights guarantees protection only against government action. It does not create a system of rights and remedies for disputes between private citizens, as does the law of contracts and torts. Courts have not determined whether punitive damages recovered by the government in a civil suit would bar subsequent prosecution.

Nor have courts agreed whether a number of administrative proceedings can be uniformly characterized as punitive or remedial. Cases involving the revocation of professional licenses, driving privileges, probation, and parole have divided courts unable to reach accord over the purposes underlying these proceedings.

When Jeopardy Attaches

Courts have provided much clearer guidance on the question of when jeopardy begins, or attaches. This question is crucial to answer because any action taken by the government before jeopardy attaches, such as dismissing the indictment, will not prevent later proceedings against a person for the same offense. Once jeopardy has attached, the full panoply of protection against multiple prosecutions and punishments takes hold.

The Supreme Court has held that jeopardy attaches during a jury trial when the jury is sworn. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn. Jeopardy begins in juvenile delinquency adjudications when the court first hears evidence. If the defendant or juvenile enters a plea agreement with the prosecution, jeopardy does not attach until the plea is accepted by the court.

When Jeopardy Terminates

Determining when jeopardy terminates is no less important, but a little more complicated. Once jeopardy has terminated, the government cannot hail someone into court for additional proceedings on the same matter without raising double jeopardy questions. If jeopardy does not terminate at the conclusion of one proceeding, it is said to be continuing, and further criminal proceedings are permitted. Jeopardy can terminate in four instances: after acquittal, after dismissal, after a mistrial, and on appeal after conviction.

A jury's verdict of acquittal terminates jeopardy, and cannot be overturned on appeal even if it is contrary to overwhelming proof of a defendant's guilt and derived from a trial rife with reversible error. This elemental maxim of double jeopardy jurisprudence entrusts the jury with the power to nullify criminal prosecutions tainted by egregious police, prosecutorial, or judicial misconduct.

A jury can also impliedly acquit a defendant. If a jury has been instructed by the judge on the elements of a particular crime and a lesser included offense, and the jury returns a guilty verdict as to the lesser offense but is silent as to the greater, reprosecution for the greater offense is barred by the Double Jeopardy Clause. For example, a jury that has been instructed as to the crimes of first- and second-degree murder can impliedly acquit the defendant of first-degree murder by returning only a guilty verdict as to murder in the second degree. A not guilty verdict as to the greater offense is inferred from the silence.

A dismissal is granted by the trial court for errors and defects that operate as an absolute barrier to prosecution. It may be entered before a jury has been impaneled, during the trial, or after a conviction. But jeopardy must attach before a dismissal implicates double jeopardy protection.

Once jeopardy attaches, a dismissal granted by the court for insufficient evidence terminates it. Such a dismissal also bars further prosecution, with one exception: the prosecution may appeal a dismissal entered after the jury has returned a guilty verdict. If the appellate court reverses the dismissal, the guilty verdict can be reinstated without necessitating a second trial. A dismissal granted for lack of evidence after a case has been submitted to a jury but before a verdict has been reached may not be appealed by the state.

Reprosecution is permitted, and jeopardy continues, when a case is dismissed by the court on a motion by the defendant for reasons other than sufficiency of the evidence. For example, courts may dismiss a case when the defendant's right to a speedy trial has been denied by prosecutorial pretrial delay. The Supreme Court has held that no double jeopardy interest is triggered when defendants obtain dismissal for reasons unrelated to their guilt or innocence (see United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 [1978]).

A mistrial is granted when it has become impracticable or impossible to finish a case. Courts typically declare a mistrial when jurors fail to reach a unanimous verdict. Like a dismissal, a mistrial declared at the defendant's behest will not terminate jeopardy or bar reprosecution. Nor will a mistrial preclude reprosecution when declared with the defendant's consent. Courts disagree about whether a defendant's mere silence is tantamount to consent.

A different situation is presented when a mistrial is declared over the defendant's objection. Reprosecution is then allowed only if the mistrial resulted from "manifest necessity," a standard more rigorous than "reasonable necessity," and less exacting than "absolute necessity." A mistrial that could have been reasonably avoided terminates jeopardy, but jeopardy continues if a mistrial was unavoidable.

The manifest necessity standard has been satisfied where mistrials have resulted from defective indictments, disqualified or deadlocked jurors, and procedural irregularities willfully occasioned by the defendant. Manifest necessity is never established for mistrials resulting from prosecutorial or judicial manipulation. In determining manifest necessity, courts balance the defendant's interest in finality against society's interest in a fair and just legal system.

Every defendant has the right to appeal a conviction. If the conviction is reversed on appeal for insufficient evidence, the reversal is treated as an acquittal and further prosecution is not permitted. However, the defendant may be reprosecuted when the reversal is not based on a lack of evidence. The grounds for such a reversal include defective search warrants, unlawful seizure of evidence, and other so-called technicalities. Retrials in these instances are justified by society's interest in punishing guilty people. A defendant's countervailing interests are subordinated when a jury's verdict is overturned for reasons unrelated to guilt or innocence.

The interests of accused individuals are also subordinated when courts permit prosecutors to seek a more severe sentence during the retrial of a defendant whose original conviction was thrown out on appeal. Courts have suggested that defendants who appeal their conviction assume the risk that a harsher sentence will be imposed during reprosecution. However, in most circumstances, courts are not permitted to impose a death sentence on a defendant during a second trial when the jury recommended life in prison during the first. The recommendation of life imprisonment is construed as an acquittal on the issue of capital punishment.

What Constitutes the Same Offense

The final question courts must resolve in double jeopardy litigation is whether successive prosecutions or punishments are for the same offense. Jeopardy may have already attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. Courts have analyzed this question in several ways, depending on whether the state is attempting to reprosecute a defendant or to impose multiple punishments.

At common law, a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts were committed during that episode. Under current law, a proliferation of overlapping and related offenses may be prosecuted as separate crimes stemming from the same set of circumstances. For example, an individual who has stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, kidnapping, and molestation. This development has significantly enlarged prosecutors' discretion over the charging process.

The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The Court said 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 a fact that the other offenses do not require. Blockburger requires courts to examine the elements of each offense as they are delineated by statute, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden to demonstrate that each offense has at least one mutually exclusive element. If any one offense is subsumed by another, such as a lesser included offense, the two offenses are deemed the same and punishment is allowed for only one.

Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But several other methods have been used by courts to determine whether successive prosecutions are for the same offense. Collateral estoppel, which prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment, is one such method. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men at a poker game. Here, a jury had already acquitted the defendant of robbing one of the other players. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, it was disallowed because the defendant had already been declared not guilty of essentially the same crime.

The "same-transaction" analysis, which is used by many state courts to bar successive prosecutions, requires the prosecution to join all offenses that were committed during a continuous interval and share a common factual basis and display a single goal or intent. Although Justices William J. Brennan, Jr., William O. Douglas, and Thurgood Marshall have endorsed the same-transaction test, no federal court has ever adopted it.

Both state and federal courts have employed the "actual-evidence" test to preclude successive prosecutions for the same offense. Unlike Blockburger, which demands that courts examine the statutory elements of proof, the actual-evidence test requires courts to compare the evidence actually introduced during the first trial with the evidence sought to be introduced by the prosecution at the second. The offenses are characterized as the same when the evidence necessary to support a conviction for one offense would be sufficient to support a conviction for the other.

Under the "same-conduct" analysis, the government is forbidden to prosecute an individual twice for the same criminal behavior, regardless of the actual evidence introduced during trial or the stautory elements of the offense. In Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the Supreme Court applied this analysis to prevent someone's being prosecuted for vehicular homicide resulting from drunk driving, when he had earlier been convicted of driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's negligence without proof of his intoxication. Although Grady was abandoned by the Supreme Court three years later, the same-conduct analysis is still used by state courts interpreting their own constitutions and statutes.

The "dual-sovereignty" doctrine received national attention in the early 1990s when two Los Angeles police officers were convicted in federal court for violating the civil rights of Rodney King during a brutal, videotaped beating, even though they had previously been acquitted in state court for excessive use of force (United States v. Koon, 833 F. Supp. 769, convictions affirmed 34 F. 3d 1416, rehearing denied 45 F. 3d 1303). Although many observers believed that the officers had been tried twice for the same offense, the convictions were upheld on appeal over double jeopardy objections. Under the dual-sovereignty doctrine, the appellate court ruled, a defendant who violates the laws of two sovereigns, even if by a single act, has committed two distinct offenses, punishable by both authorities.

The dual-sovereignty doctrine is designed to vindicate the interest each sovereign claims in promoting peace and dignity within its forum, and permits both state and federal governments to prosecute someone for the same behavior after either has already done so. A defendant may also be prosecuted successively by two states for the same act or omission. But successive prosecutions by a state and one of its political subdivisions, such as a county, city, or village, are not permitted, because these entities are deemed one sovereign.

Trying a person twice in the same jurisdiction for the same crime, a practice prohibited by the Fifth Amendment to the Constitution. (See due process of law.)

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