Also known as: non bis in idem · ne bis in idem · double jeopardy · ne bis idem
Written by attorneys · grounded in primary & secondary sources — see below
A principle of criminal procedure that bars successive prosecutions for the same offense once jeopardy has attached in the first proceeding.
Nalini Narula was convicted of robbery after an armed holdup of a convenience store. Prosecutors later sought to charge her with larceny for taking cash from the same registers during the identical incident. Because jeopardy had attached in the robbery prosecution for the greater offense, the principle prevents the subsequent lesser-included charge arising from the same conduct.
Naomi Norton faced state charges in West Virginia for causing an industrial explosion. After acquittal, prosecutors attempted a second proceeding based on newly discovered logs. The principle applies through incorporation, so the state proceeding is subject to the same prohibition on successive prosecutions as a federal case.
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A defendant was convicted after jeopardy attached in a prosecution for a greater offense. Prosecutors later attempted to charge a lesser included offense based on identical conduct. The principle bars the subsequent prosecution for the lesser included offense.
State prosecutors sought a second proceeding after an acquittal in a state court. The principle applies through incorporation into the Fourteenth Amendment. The state proceeding is therefore subject to the same constitutional bar as a federal prosecution.
After jeopardy attached in the first proceeding, prosecutors attempted a second prosecution for the same offense. The principle prevents the successive prosecution once jeopardy has attached.
A defendant faced a later charge arising from the same conduct after an earlier prosecution in which jeopardy had attached. The principle bars the subsequent prosecution for the same offense.
Once jeopardy attaches in a prosecution for a greater offense, the principle prevents the state from later prosecuting a lesser included offense arising from the same conduct. Larceny is a lesser included offense of robbery because every element of larceny is necessarily included in the robbery conviction.
Supporting sources
The principle applies to the states through incorporation into the Fourteenth Amendment, so state prosecutions are subject to the same constitutional bar on successive prosecutions as federal prosecutions.
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In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Once that occurs, the principle generally protects the defendant from being tried again for the same offense absent manifest necessity or consent.
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…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…