Double Jeopardy

In recent years, the American public has had differing viewpoints on double jeopardy. For some criminals, it provides a way to get away with murder. In 2004, a man from Moretown, Vermont, was acquitted of the murder of his coworker, but in 2011, he called the police department in Randolph, Vermont, to confess to the crime. Unfortunately, he cannot be brought to court again for the murder, and justice may never be served. 

Double Jeopardy Double Jeopardy

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Table of contents

    This article discusses double jeopardy. We will take a look at where double jeopardy comes from, some examples of double jeopardy, and some exceptions to the clause.

    Definition of Double Jeopardy

    In legal speak, "jeopardy" refers to the risks people face during criminal prosecution. This includes prison time or fines. The definition of double jeopardy is then facing that same risk twice for the same crime. The act of the prosecution filing charges against an individual doesn't mean the person is "in jeopardy." The prosecution can withdraw charges at a later time by filing a nolle prosequi or a dismissal.

    A nolle prosequi means "unwilling to pursue" in Latin. It is a prosecutor's formal dismissal (in part or in whole) of charges against an individual.

    In bench trials, double jeopardy applies when the court starts to hear evidence after the first witness is sworn in. So if the witness doesn't remember key details, the prosecution cannot dismiss the case and refile it later.

    Double Jeopardy Courtroom drawing StudySmarterFig. 1: Courtroom drawing

    Double jeopardy also applies when the court accepts a defendant's guilty plea. For example, if a defendant pleads guilty to robbery, they cannot be tried later for the crime. The courts are divided on this application of double jeopardy. Some believe jeopardy isn't attached to a guilty plea, while others believe it is.

    Additionally, a retrial is usually allowed if the court declares a mistrial. We will take a look at the exceptions to the Double Jeopardy Clause a little later in the article.

    Double Jeopardy Amendment

    Lady Justice, U.S. Supreme COurt Building, Double Jeopardy, StudySmarter.Fig. 2: Lady Justice Statue at the US Supreme Court Building

    The framers of the Constitution wrote the Double Jeopardy Clause to prevent the government from punishing a person for the same offense twice. The Double Jeopardy Clause is found in the Fifth Amendment to the US Constitution. It protects individuals from being tried for the same crime after being acquitted (deemed not guilty) or convicted (deemed guilty) and protects against more than one punishment for the same crime.

    "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . ."

    -US Constitution, 5th Amendment

    If a defendant is declared not guilty of a crime and law enforcement finds new evidence of their guilt, the defendant cannot be charged and tried for the same crime after the initial trial.

    Double jeopardy also prevents judges from resentencing a defendant who has already served the punishment for their crime.

    Only sanctions that are considered punishment qualify under the Double Jeopardy Clause. Originally, the clause only applied to the government, but the Supreme Court has incorporated certain amendments and clauses against the states. Later, the Supreme Court expanded the Double Jeopardy Clause to civil sanctions that are intended as punishment.

    States can have their own double jeopardy protections in addition to the Fifth Amendment protections. Court and legislature interpretations of the double jeopardy clause can vary across different states.

    Example of Double Jeopardy

    There are many examples of the Double Jeopardy Clause in criminal law history.

    Fong Foo v. United States

    In 1962, the Supreme Court heard Fong Foo v. United States. The court ruled that a case couldn't be retried even if a lower court judge's decisions were made in error. In Fong Foo v. United States, a lower court judge ordered the jury to acquit the defendant based on their belief that witnesses were not credible and that the US District Attorney acted improperly.

    The US government appealed the court's decision, and an appellate court granted a retrial. However, the Supreme Court disagreed with their ruling. While the Supreme Court agreed that the judge made a bad decision, the jury actually acquitted the defendant, so there was a final judgment, and the trial ended. Granting a retrial would violate the Double Jeopardy Clause.

    Michael Weir Case

    Michael Weir was found guilty in 1999 of a double murder of two elderly men. Weir denied the murders, which occurred on two separate dates, were at his hands. An appeals court revoked the conviction of Weir based on minor technicalities.

    Twenty years later, new DNA evidence (palm prints) linked Weir to both crime scenes using updated methods. Michael Weir was retried using the new evidence and found guilty of the murders. History was made as the defendant was tried and found guilty twice for the same crime.

    Exceptions to Double Jeopardy

    The Michael Weir case is an example of an exception to the Double Jeopardy clause. A few legal issues provide for limited exceptions to the rule, particularly the separate sovereign exception, lesser charges, and civil or administrative proceedings.

    Separate Sovereign Exception

    In Abbate v. United States (1959), the Supreme Court ruled that a crime can be prosecuted in both federal and state court without violating the Double Jeopardy Clause. This is because state and federal governments are considered separate sovereigns. Sovereigns are political authorities. Separate prosecutions allow the state and federal governments to enforce their separate statutes and exert their law enforcement abilities.

    The exception maintains that two offences have been committed if an individual commits an act that violates both federal and state law. Therefore, two "sovereigns" can prosecute.

    In 2019, the Supreme Court ruled in Gamble v. United States upheld the idea of separate sovereigns but clarified that it is not an exception to the Double Jeopardy Clause but more of a corollary to the Fifth Amendment.

    A corollary is a conclusion that can be drawn from a set of facts using common sense or reason.

    The Supreme Court ruled in Heath v. Alabama that the separate sovereign exception also applies when multiple states want to prosecute an individual for the same crime. For example, if an individual commits a murder in Florida, then escapes to Louisiana and commits another murder, both states can prosecute the individual. Usually, however, the federal government attains jurisdiction over crimes crossing state lines.

    Lesser Charges

    A prosecutor can file multiple charges against one defendant. For example, someone charged with first-degree murder might also be charged with the lesser charge of second-degree murder. This is frequently done when prosecutors want something to fall back on, so they can get a conviction if they think the jury might acquit a defendant on the more serious charge.

    There are some exceptions to this, in that lesser and greater charges are seen as 'equal'. For example, a defendant may be charged with both first and second-degree murder if the defendant is then convicted of second-degree murder but later has that conviction overturned on an appeal. They cannot be retried for first-degree murder, only second-degree. This is because they are seen as the same.

    Civil or Administrative Proceedings

    If a defendant is acquitted in a criminal trial, they can still be tried in a civil trial based on the same facts. For example, an individual can be declared not guilty of murder but can still be ordered to pay monetary damages in a civil trial. An individual can also face administrative proceedings that can result in that individual getting their driver's license revoked or suspended.

    Americans famously followed one of the most high-profile criminal trials. From November 9, 1994, until a decision was rendered on October 3, 1995, the courtroom drama of the famed O.J. Simpson murder trial captivated public attention. The not-guilty verdict on murder charges against the football player/actor capped 11 months of speculation and legal attention. But he was later found liable in a wrongful death civil proceeding brought by the family of one of the victims.

    Photo of Judge's gavel, Double Jeopardy, StudySmarterFig. 3: Judge's gavel

    Double Jeopardy in Mistrials

    Mistrials and double jeopardy can seem like they wouldn't be compatible. But defendants can be retried when the judge declares a mistrial in court. Mistrials can be declared because the jury cannot reach a verdict or the court cannot continue the trial because of extenuating circumstances.

    A mistrial occurs in criminal law when the trial is concluded prior to a jury verdict. Mistrials can be proclaimed by the judge involved for reasons such as improper submission of evidence, misconduct of participants, or when the judge believes a fair verdict is unachievable.

    However, a judge will not declare a mistrial because of misconduct by the prosecutors in hopes of getting a mistrial. Furthermore, a second trial will not be given if a prosecutor fails to plan for an event that is within their control, such as a witness failing to appear for the trial. If the prosecutor knew that the witness had not been served a subpoena because they couldn't be located, then they should have notified the court before the jury was sworn in.

    To be clear, the double jeopardy rule does apply in legal cases when the defendant moves for a mistrial.

    Double Jeopardy - Key takeaways

    • The Double Jeopardy Clause of the Fifth Amendment in the US Constitution protects individuals from being punished for the same crime twice.
    • Jeopardy is attached to a case when the first juror is sworn in at trial, the first witness is sworn in at a bench trial, or the court accepts the defendant's plea.
    • Exceptions to the Double Jeopardy Clause include the separate sovereign exception, lesser charges, and civil or administrative proceedings.
    • States have varied interpretations of the Double Jeopardy Clause.
    • Depending on the circumstances behind a judge declaring a mistrial (i.e. a hung jury), the prosecution may be granted a second trial.


    1. Fig. 1: Jeopardy is attached when the jury is sworn in for trial ( by Beinecke Library ( licensed by CC BY-SA-2.0 (
    2. Cornell Law School, Legal Information Institute
    Frequently Asked Questions about Double Jeopardy

    What is double jeopardy? 

    Double jeopardy is when an individual is tried for the same offense twice.

    How does double jeopardy work? 

    Double jeopardy works when an individual is charged with a crime, is either acquitted or convicted of the crime, and the prosecutor tries to file the same charges against the individual again with the same evidence. 

    What amendment is double jeopardy?

    The Fifth Amendment contains the Double Jeopardy Clause.

    When does double jeopardy attach? 

    Double Jeopardy attaches when 1) the first juror is sworn in for trial, 2) the first witness is sworn in during a bench trial, or 3) the defendant accepts a guilty plea. However, some states believe that double jeopardy doesn't attach when a defendant pleads guilty to a crime. 

    When does double jeopardy not apply? 

    Double jeopardy doesn't apply when:

    -a judge declares a mistrial due to a hung jury or circumstances that prevent a trial from moving forward. 

    -an individual is acquitted in criminal court and sued in civil court. 

    -  a prosecutor puts forth lesser charges for the same crime.

    Test your knowledge with multiple choice flashcards

    Where is the Double Jeopardy Clause located?

    True or false: Double Jeopardy doesn't apply when the jury can't reach a verdict.

    True or false: Double Jeopardy doesn't apply when the prosecution's witness doesn't appear for trial.

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