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Double Jeopardy

The constitutional bar on being tried twice for the same offence after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offence", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

The Fifth Amendment provides that no person shall be twice put in jeopardy for the same offence. The clause protects against a second prosecution for the same offence after acquittal, a second prosecution after conviction, and multiple punishments for the same offence in a single proceeding. An acquittal is final however wrong the verdict, and the prosecution may not appeal it, retry the defendant, or relitigate a fact the acquittal necessarily decided in a later prosecution for a different offence. Jeopardy attaches when the jury is sworn or, in a bench trial, when the first witness is sworn, and in a plea when the court accepts it; a dismissal before that point permits refiling.

"Same offence" is tested by the elements, not the conduct: two statutory provisions are the same offence unless each requires proof of a fact the other does not, so a single act can lawfully be charged and punished under two statutes with different elements, and a lesser-included offence is the same offence as the greater. The clause does not bar a retrial after a conviction is reversed on appeal for an error at trial - the defendant's appeal is treated as a continuation of the original jeopardy - but it does bar retrial after a reversal for insufficient evidence, which is the equivalent of an acquittal. A mistrial declared over the defendant's objection permits retrial only where there was manifest necessity, a hung jury being the classic case; a mistrial the defendant requested permits retrial unless the prosecutor deliberately provoked it.

Under the dual-sovereignty doctrine, the state and the federal government are separate sovereigns with separate offences, so an acquittal in one does not bar prosecution in the other for the same act, and two states may each prosecute; the federal government limits successive prosecutions by internal policy, not by law. Civil consequences of the same act - a civil fine, forfeiture, professional discipline, deportation, sex-offender registration - are not "punishment" for double-jeopardy purposes unless they are so punitive as to be criminal in effect. The clause is a personal right that is waived if not raised before trial.

Where this comes from

The clause is the Fifth Amendment, applied to the states in Benton v. Maryland, 395 U.S. 784 (1969). Attachment is Crist v. Bretz, 437 U.S. 28 (1978); the elements test is Blockburger v. United States, 284 U.S. 299 (1932), reaffirmed in United States v. Dixon, 509 U.S. 688 (1993); the collateral-estoppel component is Ashe v. Swenson, 397 U.S. 436 (1970); retrial after reversal is United States v. Ball, 163 U.S. 662 (1896), and Burks v. United States, 437 U.S. 1 (1978); mistrial is Arizona v. Washington, 434 U.S. 497 (1978), and Oregon v. Kennedy, 456 U.S. 667 (1982); dual sovereignty is Gamble v. United States, 587 U.S. 678 (2019), and its municipal-state limit Waller v. Florida, 397 U.S. 387 (1970); civil sanctions are Hudson v. United States, 522 U.S. 93 (1997). The Justice Department's Petite policy is at Justice Manual § 9-2.031.

When people hire a lawyer for this

Double jeopardy is a question for the lawyer at charging and plea stage, not after a second trial has begun: whether multiple counts are really one offence, whether a plea to one charge will bar the others, whether a hung jury means retrial, and whether a federal case may follow a state one are all answerable in advance. A person acquitted in one court and then charged by another sovereign for the same act should not assume the first verdict ends it; a person facing what looks like a second prosecution by the same sovereign should raise the bar in writing before trial or lose it.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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