The Fifth Amendment to the U.S. Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” It’s a relatively straightforward concept: The government can’t prosecute someone more than once for the same crime. In practice, though, the double jeopardy prohibition can get knotty.
“Jeopardy” in the legal sense describes the risk brought by criminal prosecution. With notions of fairness and finality in mind, the Framers of the Constitution included the Double Jeopardy Clause to prevent the government from trying or punishing a defendant more than once.
Specifically, double jeopardy protects against:
A defendant facing any of these scenarios can hold up the Double Jeopardy Clause as a shield.
There are clear instances when this shield is available, such as when a jury has acquitted a defendant and the state brings the same charges a second time. (If the prosecution discovered new evidence of the defendant’s guilt after the initial trial, too bad.) Double jeopardy also bars punishment in certain prototypical scenarios—for example, when a judge tries to resentence someone who has already served the punishment for the crime in question.
But there’s often not an obvious answer as to whether the Double Jeopardy Clause applies. Certain principles guide courts in making this determination.
Double jeopardy applies to criminal cases only, not civil or administrative proceedings. That means, for example, that a defendant convicted of a crime isn’t immune from a civil lawsuit for damages (money) from the victim of the crime. It also means that the DMV can suspend and revoke driver licenses for the same actions that lead to criminal convictions. (An example is drunk driving, which a court and the DMV can punish separately.)
Double jeopardy prohibits different prosecutions for the same offense, but it doesn’t protect a defendant from multiple prosecutions for multiple offenses. Suppose, for example, that Bodie wins his trial for possession with intent to sell more than 50 grams of cocaine base. If the facts justify it, the state can try Bodie again for the “lesser included” charge of possession with intent to sell five grams or more of cocaine base. (U.S. v. Ginyard, 511 F.3d 203 (D.C. Cir. 2008).)
The government must place a defendant “in jeopardy” for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn’t cause jeopardy to “attach”—the proceedings must get to a further stage.
Generally, jeopardy attaches when the court swears in the jury. In a trial before a judge, jeopardy attaches after the first witness takes the oath and begins to testify.
The attachment of jeopardy doesn’t necessarily mean the government can’t reprosecute the defendant—jeopardy must also terminate. This means that the case must in some sense conclude. The classic example is a jury reaching a verdict of either guilty or not guilty. Jeopardy also terminates when a judge finds the evidence insufficient to convict the defendant and enters a judgment of acquittal rather than letting the case go to the jury.
But just because a case ends doesn’t mean that retrial is barred. A hung jury typically allows a retrial. Similarly, if the defense consents to a mistrial, perhaps because of juror misconduct, the prosecution can usually reprosecute the defendant. On the other hand, if a judge declares a mistrial over the defense’s objection, the prosecution must show a critical need to retry the defendant. But that isn’t as tough as it sounds. For example, retrial is okay when, despite the defense’s protest, a judge declares a mistrial because a juror stopped coming to court. (United States v. Wells, 790 F.2d 73, 74 (10th Cir. 1986).)
The double jeopardy guarantee protects only against double prosecution or double punishment by the same “sovereign,” or government. Even if the exact same conduct is at issue, a state prosecuting someone doesn’t prevent the federal government from doing the same, and vice versa.
The federal prosecution of the officers who beat Rodney King illustrates the same-sovereign principle. The State of California prosecuted the videotaped officers, but failed to obtain any convictions. The 1992 Los Angeles Riots ensued. The federal government then prosecuted the officers for the same beating, alleging a violation of King’s civil rights. The federal convictions were valid because separate sovereigns had tried the officers.
Prosecutors often file multiple charges against defendants for the same course of allegedly criminal conduct. For example, a prosecutor might charge Omar with both assault and assault with a firearm for pointing a shotgun at Russell. If a jury convicts Omar of each crime, the Double Jeopardy Clause will block the judge from sentencing him for both. (Brown v. Ohio, 432 U.S. 161 (1977).) The judge must impose only the punishment for the “greater” crime, in this case, assault with a firearm.
Double jeopardy occasionally arises in criminal appeals, forcing appellate courts to consider whether it rightfully applies to a variety of situations. For these courts, the fundamental consideration is whether reprosecution or additional punishment is fair given the circumstances. After all, the Framers believed that the mighty government shouldn’t get a second bite at the apple.