Also known as: plea of former jeopardy · double jeopardy
Written by attorneys · grounded in primary & secondary sources — see below
A procedural defense or plea asserting that the defendant has already been prosecuted for the same offense. The defense informs the court that a second prosecution is improper because jeopardy attached in the earlier proceeding.
Fernando Farrell was tried and convicted of robbery after a jury was empaneled and sworn. Prosecutors later charged him with larceny for taking cash from the same registers during the identical incident. The court dismissed the larceny prosecution because former jeopardy from the robbery trial precluded the lesser included offense.
Faith Fitzgerald was acquitted in state court after a jury trial on charges of causing an explosion. State prosecutors then attempted a second prosecution based on newly discovered logs showing the same conduct. The court sustained her plea of former jeopardy because the Fifth Amendment bar applies to the states.
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Frank Fisher faced multiple charges that could have been tried together but elected to sever them for separate proceedings. After acquittal on the first severed charge, he raised former jeopardy to block the remaining charges. The court rejected the plea because his consent to separate trials prevented attachment of jeopardy across the severed matters.
Faye Fuller was convicted but obtained reversal on appeal because the trial court had erroneously admitted certain evidence. Prosecutors sought to retry her on the same charges using only the remaining proof. The court permitted the retrial because reversal for evidentiary error does not trigger former jeopardy.
Frederick Ferguson moved to dismiss his case mid-trial on grounds that did not resolve factual guilt. The court granted the motion and the government later refiled the charges. The court denied his former jeopardy claim because the dismissal at his behest did not constitute an acquittal on the merits.
Fumiko Fujimoto received a sentence enhancement in one case based on certain conduct. Prosecutors later indicted her separately for that same conduct as a distinct offense. The court rejected her former jeopardy plea because using the conduct only as a sentencing factor did not constitute prior punishment.
Jeopardy attaches when the jury is empaneled and sworn. Once attachment occurs, the defendant is protected from retrial for the same offense absent manifest necessity or consent. A unilateral discharge of the jury without such justification bars retrial.
Yes. Once jeopardy attaches in a prosecution for a greater offense, the Double Jeopardy Clause prevents the state from later prosecuting a lesser included offense arising from the same conduct. Larceny is a lesser included offense of robbery when both arise from the same taking of cash.
No. The Double Jeopardy Clause prevents the state from retrying an issue that a prior jury resolved in the defendant's favor. Issue preclusion blocks any new prosecution that would require the state to prove the same ultimate fact even if new logs or evidence surface later.
…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…