Double jeopardy

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[case]Barron v. Baltimore[Barron v. Baltimore] (1833), the Court said that the provisions of the Bill of Rights limited the power of only the federal government and were inapplicable to the states. Consequently, there were no state court double jeopardy cases for the Court to review. Not until Benton v. Maryland[case]Benton v. Maryland[Benton v. Maryland] (1969) did the Court conclude that the double jeopardy clause was applicable to the states, relying on the selective incorporation doctrine of the due process clause of the Fourteenth Amendment. Since that time, so many, and sometimes contradictory, double jeopardy cases came before the Court that Chief Justice William H. Rehnquist referred to this area of the law as a Sargasso Sea one in which even a skillful navigator could become entangled and lost.

The Basic Protection

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[case]Ashe v. Swenson[Ashe v. Swenson] (1970). After an acquittal, no matter how strong the state’s evidence may have been, the defendant may not be forced to undergo the stress and expense of another prosecution for that crime, regardless of whether the verdict in the second case is a conviction or an acquittal.

Similarly, the Court ruled that a person cannot be tried again after having previously been convicted of the same offense in Brown v. Ohio[case]Brown v. Ohio[Brown v. Ohio] (1977). However, in United States v. Ball[case]Ball, United States v.[Ball, United States v.] (1896), the Court found that a necessary exception to this rule does allow the reprosecution of an individual whose conviction was reversed on appeal. There are many reasons why a conviction might be reversed, such as the improper admission of prejudicial evidence or inaccurate instructions to the jury. In these situations, after the reversal of the first conviction, the case could be retried without using the inadmissible evidence and with proper instructions to the jury, and the retrial would not be double jeopardy.


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[case]Ursery, United States v.[Ursery, United States v.] (1996), the Court ruled that a person’s having to forfeit his or her house and car to the government because they were used in a drug transaction is not the imposition of double jeopardy, although the individual had previously been criminally convicted and sentenced for the same drug transaction.

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[case]Kansas v. Hendricks[Kansas v. Hendricks] (1997), found there is no double jeopardy, even if such sexual offenders might end up being confined for the rest of their lives.

The dual sovereigntyDual sovereignty doctrine is another major exception to the protection against double jeopardy. The basic guarantee is that the same sovereign, or government, will not prosecute or punish an individual twice for the same offense. There is no double jeopardy violation, however, if different sovereigns prosecute an individual for the same offense. For these purposes, the federal government of the United States and the government of a given state, such as California, are deemed to be separate sovereigns.

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[case]Heath v. Alabama[Heath v. Alabama] (1985), the Court ruled that because the states are separate sovereigns from one another, prosecutions for the same offense by two separate states do not violate double jeopardy. With traditional crimes, such as murder or rape, it would be unusual for two states to have sufficient contact with the crime to have jurisdiction to prosecute it, but many conspiracies, especially those involving illegal drugs, have sufficient contacts with several states to confer jurisdiction on more than one. Nonetheless, dual sovereignty prosecutions involving two or more states are relatively rare.

Further Reading

  • 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

Fifth Amendment

Fourteenth Amendment