Guarantee, stated in the Fifth Amendment, that if a person has been acquitted or convicted of an offense, he or she cannot be prosecuted a second time for that same offense.
The second clause of the Fifth Amendment, part of the Bill of Rights, states “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” For the first part of the United States’ existence, federal criminal cases were not appealed to the Supreme Court, so it had no federal double jeopardy cases. In addition, in Barron v. Baltimore
Jeopardy the immediate threat of conviction and punishment attaches in a criminal case when a jury is sworn in or, if there is no jury, when a judge begins to hear evidence. Whether jeopardy has attached is important because events occurring before that time, such as dismissal of the charges, will not preclude a subsequent prosecution; a dismissal of the charges after jeopardy has attached would preclude their being brought again.
A defendant who has been acquitted cannot be reprosecuted for that offense. Even with a relatively weak case, a prosecutor who could try the case multiple times might be able to perfect the presentation of witnesses and evidence so that eventually a jury would agree to convict. The Court found that such a result would be fundamentally unfair and would violate double jeopardy in Ashe v. Swenson
Similarly, the Court ruled that a person cannot be tried again after having previously been convicted of the same offense in Brown v. Ohio
The doctrine protects against only successive criminal prosecutions or punishments; it does not prohibit a criminal prosecution after a civil action or a civil action after a criminal action. For example, property used in the commission of certain crimes, such as houses, cars, and other vehicles used in the manufacture and distribution of illegal drugs, is subject to forfeiture to the government. Such forfeiture actions usually are deemed to be civil rather than criminal punishments. Therefore, in United States v. Ursery
Similarly, those who have served the entire sentence for conviction of a sexual offense, such as rape or child molestation, may subsequently be adjudicated as sexually violent predators and ordered confined and treated until it is safe for them to be released. Because the subsequent adjudication is deemed civil and not criminal, the Court, in Kansas v. Hendricks
The dual sovereignty
Cities and counties derive their governmental authority from that of the state in which they are located, so that neither a city nor a county is considered a separate sovereign from the state. Consequently, prosecutions for the same offense in, for example, Chicago municipal court and Illinois state courts would violate double jeopardy. In Heath v. Alabama
Fireside, Harvey. The Fifth Amendment: The Right to Remain Silent. Springfield, N.J.: Enslow, 1998. Garcia, Alfredo. The Fifth Amendment: A Comprehensive Approach. Westport, Conn.: Greenwood Press, 2002. Lafave, Wayne, and Jerold Israel. Criminal Procedure. St. Paul: West Publishing, 1985. McAninch, William. “Unfolding the Law of Double Jeopardy.” South Carolina Law Review 44 (1993): 411. Miller, Lenord. Double Jeopardy and the Federal System. Chicago: University of Chicago Press, 1968.
Bill of Rights