Double Jeopardy

Double Jeopardy in the United States

Subjecting an individual to prosecution more than once for the same crime. The provision against double jeopardy precludes the state from repeatedly putting a citizen through the ordeal of prosecution for a particular offense and the possibility of conviction on the charge. The ban on double jeopardy was extended to the states by the Warren Court in Benton v. Maryland (395 U.S. 784: 1969). The double jeopardy clause of the Fifth Amendment is seen by the Court as representing a “fundamental ideal in our constitutional heritage.” The clause does not prevent both federal and state levels of government from prosecuting persons for the same criminal act on the basis of dual sovereignty. Bank robbery, for example, is both a federal and a state crime if the bank has federal insurance coverage. Successive prosecutions at the state and local levels are precluded because local units of government are subordinate instrumentalities of the state. Dual sovereignty does not exist within a state. In a jury trial, jeopardy commences when the jury is sworn. In a nonjury trial, jeopardy begins when the first witness takes the stand. Cases dismissed prior to the beginning or “attachment” of jeopardy may be reinstated. The double jeopardy clause does not apply to cases where a defendant successfully appeals following a conviction and has the conviction set aside on grounds other than evidence insufficiency. Reprosecution in such situations is limited to a charge no greater than the equivalent of the original conviction that prompted the appeal. A sentence may be more severe following successful reprosecution without violating the clause if multiple punishments have been imposed. (1)

See Also

Charge (Criminal Process) Prosecutorial Function (Criminal Process).

Analysis and Relevance

A double jeopardy determination is frequently made difficult by what constitutes sameness. Sameness is usually resolved by precluding prosecutions for two offenses where the same evidence is required to prove guilt. A “same transaction” test, which views offenses in terms of similar actions by the defendant, may also be used. Neither approach clearly delineates sameness, however. The doctrine of collateral estoppel is held to be part of the double jeopardy protection and provides some assistance in solving the sameness problem. The doctrine forbids reprosecution in cases where a key fact issue present in the second case was resolved in favor of the accused in the first case. Another double jeopardy problem is created by the declaration of a mistrial after jeopardy has attached. If the defendant makes the mistrial motion, ordinarily there is no double jeopardy issue. But if the prosecution makes the motion, or if the judge grants a mistrial without a motion, an ambiguous situation is created. In the latter two situations, jeopardy may be double on a reprosecution unless the trial was “manifestly necessitated.” (2)

Notes and References

  1. Definition of Double Jeopardy from the American Law Dictionary, 1991, California
  2. Id.

Practical Information

The situation where a person is twice put in danger of punishment for committing the same offense. The Fifth Amendment bars a second prosecution where a party has already been put in jeopardy. For a plea of double jeopardy to be valid, the offense charged in the second indictment (see grand jury indictment (in U.S. law)) must be the same as that charged in the first, and both prosecutions must take place within the same jurisdiction (in U.S. law). See also bill (in U.S. law)
(Revised by Ann De Vries)

What is Double Jeopardy?

For a meaning of it, read Double Jeopardy in the Legal Dictionary here. Browse and search more U.S. and international free legal definitions and legal terms related to Double Jeopardy.

Concept of Double Jeopardy

In the U.S., in the context of Judiciary power and branch, Double Jeopardy has the following meaning: The Fifth Amendment to the U.S. Constitution forbids putting a person on trial a second time for an offense of which he or she has previously been convicted or acquitted. But the protection against double jeopardy does not extend to conduct that violates both state and federal law or to multiple prosecutions of a suspect for conduct that constitutes more than one offense. (Source of this definition of Double Jeopardy : University of Texas)

Double Jeopardy

Resources

See Also

  • Judiciary Power
  • Judiciary Branch

Resources

See Also

  • Adversary System
  • Appea
  • Criminal Procedure: Constitutional Aspects
  • Crimina Trial

Related Case Law

Ashe v. Swenson, 397 U.S. 436 (1970).

Bartkus v. Illinois, 359 U.S. 121 (1959).

Benton v. Maryland, 395 U.S. 784 (1969).

Blockburger v. United States, 284 U.S. 299 (1932).

Brown v. Ohio, 432 U.S. 161 (1977).

Gore v. United States, 357 U.S. 386 (1958).

Grady v. Corbin, 495 U.S. 508 (1990).

Houston v. Moore, 5 Wheat. 1 (1820).

In re Nielsen, 131 U.S. 176 (1889).

Missouri v. Hunter, 459 U.S. 359 (1983).

Palko v. Connecticut, 302 U.S. 319 (1937).

United States v. Dixon, 509 U.S. 688 (1993).

United States v. Perez, 22 U.S. 579 (1824).

Further Reading (Books)

Amar, Akil Reed. “Double Jeopardy Law Made Simple.” Yale Law Journal 106 (April 1997): 1807-1848.

Blackstone, William. Commentaries on the Laws of England (1765), vol. 4. Chicago: University of Chicago Press, 1979.

Cassell, Paul G. “The Rodney King Trial and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereignty Doctrine.” UCLA Law Review 41 (February 1994): 693-720.

Friedland, Martin L. Double Jeopardy. Oxford, U.K.: Clarendon Press, 1969.

Guerra, Sandra. “The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforcement and Double Jeopardy.” North Carolina Law Review 73 (March 1995): 1159-1210.

Herman, Susan N. “Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the ACLU.” UCLA Law Review 41 (February 1994): 609-647.

King, Nancy J. “Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties.” University of Pennsylvania Law Review 144 (November 1995): 101-196.

Kirchheimer, Otto. “The Act, the Offense and Double Jeopardy.” Yale Law Journal 58 (March 1949): 513-544.

Moore, Michael S. Act and Crime. Oxford, U.K.: Clarendon Press, 1993.

Poulin, Anne Bowen. “Collateral Estoppel in Criminal Cases: Reuse of Evidence after Acquittal.” University of Cincinnati Law Review 58, no. 1 (1989): 1-57.

“Double Jeopardy: Grady and Dowling Stir the Muddy Waters.” Rutgers Law Review 43 (summer 1991): 889-931.

Rudstein, David S. “Double Jeopardy and the Fraudulently-Obtained Acquittal.” Missouri Law Review 60 (summer 1995): 607-651.

Further Reading (Books 2)

Schulhofer, Stephen J. “Jeopardy and Mistrials.” University of Pennsylvania Law Review 125 ( January 1977): 449-539.

Sigler, Jay A. Double Jeopardy: The Development of a Legal and Social Policy. Ithaca, N.Y.: Cornell University Press, 1969.

Shellenberger, James A., and Strazzella, James A. “The Lesser-Included Offense Doctrine and the Constitution: The Development of Due Process and Double Jeopardy Remedies.” Marquette Law Review 79 (fall 1995): 1-193.

Strazzella, James A. “The Relationship of Double Jeopardy to Prosecution Appeals.” Notre Dame Law Review 73 (November 1997): 1-30.

Thomas, George C., III. “Sentencing Problems Under the Multiple Punishment Doctrine.” Villanova Law Review 31 (September 1986): 1351-1428.

Double Jeopardy: The History, the Law. New York: New York University Press, 1998.

“Twice in Jeopardy.” Yale Law Journal 75 (December 1965): 262-321.

Westen, Peter. “The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences.” Michigan Law Review 78 (June 1980): 1001-1065.

Westen, Peter, and Drubel, Richard. “Toward a General Theory of Double Jeopardy.” Supreme Court Review (1978): 81-169.

Further Reading (Articles)

Double Jeopardy, Encyclopedia of the American Constitution; January 1, 2000

Double Jeopardy Protection from Civil Sanctions after Hudson V. United States, Journal of Criminal Law and Criminology; March 22, 1999; Melenyzer, Lisa

Double jeopardy protection from civil sanctions after Hudson v. United States, Journal of Criminal Law and Criminology; April 1, 1999; Melenyzer, Lisa

Double Jeopardy: The History, the Law. (Review Essay / A Rough Country Guide: Double Jeopardy, Doctrine, and Realism)., Criminal Justice Ethics; January 1, 2001; Pillsbury, Samuel H.

Double Jeopardy Law Made Simple, The Yale Law Journal; April 1, 1997; Amar, Akhil Reed

Double Jeopardy and the United States Sentencing Guidelines, Journal of Criminal Law and Criminology; June 22, 1996; Wiet, Elizabeth J.

The Double Jeopardy Clause, Newly Discovered Evidence, and an “Unofficial” Exception to Double Jeopardy: A Comparative International Perspective, Albany Law Review; March 22, 2013; DeBraccio, Steven V.

Double, Double Toil and Trouble: An Invitation for Regaining Double Jeopardy Symmetry in Courts-Martial, Army Lawyer; April 1, 2011; Everett, Daniel J;

Witte v. United States: Double jeopardy and the United States sentencing guidelines, Journal of Criminal Law and Criminology; July 1, 1996; Wiet, Elizabeth J

Double Jeopardy (Update 1), Encyclopedia of the American Constitution; January 1, 2000

The` case of Ex Parte Lange (or how the double jeopardy clause lost its “life or limb”), American Criminal Law Review; January 1, 1999; Limbaugh, Stephen N Jr

WHAT’S WRONG WITH A LITTLE MORE DOUBLE JEOPARDY? A 21ST CENTURY RECALIBRATION OF AN ANCIENT INDIVIDUAL RIGHT, American Criminal Law Review; July 1, 2007; Creekpaum, Kyden

One bite at the apple: reversals of convictions tainted by prosecutorial misconduct and the ban on double jeopardy., Michigan Law Review; March 1, 1996; Bierschbach, Rick A.

Fifth Amendment–The adoption of the “same elements” test: The Supreme Court’s failure to adequately protect defendants from double jeopardy, Journal of Criminal Law and Criminology; January 1, 1994; Pace, Kirstin

Changing the tide of double jeopardy in the context of continuing criminal enterprise, Journal of Criminal Law and Criminology; April 1, 1997; Amy J Kappeler;

Changing the Tide of Double Jeopardy in the Context of the Continuing Criminal Enterprise, Journal of Criminal Law and Criminology; March 22, 1997; Kappeler, Amy J.

Multiple-Punishment and the Double Jeopardy Clause: The United States V. Ursery Decision, St. John’s Law Review; January 1, 1997; Wells, Adam C

DOUBLE JEOPARDY, POST-BLAKELY, American Criminal Law Review; October 1, 2004; Cone, Timothy

The Substitution of Words for Analysis and Other Judicial Pitfalls: Why David Sattazahn Should Have Received Double Jeopardy Protection, Journal of Criminal Law and Criminology; March 22, 2004; Chu, David

THE SUBSTITUTION OF WORDS FOR ANALYSIS AND OTHER JUDICIAL PITFALLS: WHY DAVID SATTAZAHN SHOULD HAVE RECEIVED DOUBLE JEOPARDY PROTECTION, Journal of Criminal Law and Criminology; April 1, 2004; Chu, David

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