Also known as: double-jeopardy · ne bis in idem
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection under the Fifth Amendment that bars the government from prosecuting or punishing an individual more than once for the same offense. The protection applies once jeopardy has attached in a criminal proceeding and prevents successive prosecutions for greater and lesser included offenses arising from identical conduct. It also incorporates against the states and requires a court of competent criminal jurisdiction for any prior proceeding to trigger the bar.
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Dorothy Daniels stood trial for murder after a fatal shooting. A jury was empaneled and sworn, and she was acquitted. The state then filed a new information charging manslaughter based on the identical shooting incident. The court dismissed the manslaughter prosecution because the prior acquittal on the greater offense barred the lesser included charge under double jeopardy.
Destiny Davis faced state charges for robbery in a state court. After the state obtained a conviction, federal prosecutors sought to try her for the same robbery under federal law. The federal court dismissed the indictment because the Double Jeopardy Clause applies to the states and prevents the second prosecution.
Darrell Duncan went to trial on felony theft charges. The jury was empaneled and sworn before the judge declared a mistrial. The state attempted to retry him on the same charges. The court dismissed the new prosecution because jeopardy had attached and the mistrial did not permit retrial.
Dolores Diaz appeared in a small-claims court that lacked criminal jurisdiction and received a civil judgment on facts later charged as felony embezzlement. The state then filed criminal charges in the proper court. The criminal court denied her double jeopardy motion because the earlier tribunal had no authority to adjudicate criminal guilt.
Diego Duarte received an enhanced sentence in one case based on certain conduct. Prosecutors later indicted him separately for that same conduct as a distinct crime. The court rejected his double jeopardy claim because using the conduct only as a sentencing factor did not constitute prior punishment for double jeopardy purposes.
Derek Douglas was acquitted of criminal drug charges. The government then pursued civil forfeiture of his property tied to the same alleged conduct. The court allowed the forfeiture action to proceed because double jeopardy does not bar civil proceedings that lack criminal sanctions.
Jeopardy attaches when the jury is empaneled and sworn. After attachment, retrial on the same offense is barred absent manifest necessity or the defendant's consent. A mistrial caused by prosecutorial negligence does not permit retrial.
Yes. Once jeopardy has attached and the defendant has been prosecuted for the greater offense, the Double Jeopardy Clause bars a subsequent prosecution for a lesser included offense based on the same conduct.
…by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication. Whether or not a newspaper can survive a succession…
…of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury-trial guarantee and the Double Jeopardy Clause of the Fifth Amendment. In the federal system it also would be unconstitutional to prohibit a President from deciding, as an act of executive clemency, to reprieve one sentenced to…
…Monge was another recidivism case in which the question presented and the bulk of the Court's analysis related to the scope of double jeopardy protections in sentencing. The dissent extracts from that decision the majority's statement that "the Court has rejected an absolute rule that an enhancement constitutes an element of the…
…(claim of immunity under the Speech and Debate Clause); Abney v. United States , 431 U. S. 651 (1977) (claim of immunity under Double Jeopardy
…other hand, this Court in Palko v. Connecticut , 302 U. S. 319 (1937), refused to hold that the Fourteenth Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States. In so refusing, however, the Court, speaking through Mr. Justice Cardozo, was careful to emphasize that “immunities that are valid…
Yes. The Fifth Amendment Double Jeopardy Clause applies to the states through incorporation into the Fourteenth Amendment, so state prosecutions are subject to the same constitutional bar as federal prosecutions.
No. A prior proceeding does not bar a later prosecution when the earlier tribunal lacked jurisdiction over the defendant or the criminal offense. Such a proceeding is treated as a nullity for double jeopardy purposes.
No. Jeopardy generally does not attach in civil proceedings other than juvenile proceedings, so a civil forfeiture action following an acquittal on related criminal charges does not violate double jeopardy protections.