Also known as: twice put in jeopardy · double jeopardy
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that bars the government from prosecuting or punishing a person more than once for the same offense after jeopardy has attached in a prior proceeding.
Trevor Tate was tried in federal court on a capital embezzlement charge. After the jury was sworn and evidence began, the court declared a mistrial due to prosecutorial error. The government later filed a new indictment for the identical conduct. The court dismissed the second proceeding because the initial attachment of jeopardy barred retrial for the same offense.
Tonya Takahashi was convicted of felony assault in state court. Prosecutors then charged her with misdemeanor battery arising from the identical altercation. The court dismissed the misdemeanor prosecution because the prior conviction for the greater offense barred a subsequent lesser-included charge based on the same conduct.
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Tyler Taylor was acquitted in federal court on drug-trafficking charges. State prosecutors then brought identical charges in state court for the same transactions. The state court dismissed the prosecution because the Double Jeopardy Clause, incorporated against the states, barred the second proceeding.
Travis Tate faced federal charges for both conspiracy and the underlying substantive offense arising from the same scheme. After acquittal on the conspiracy count, the government sought to proceed on the substantive count. The court allowed the second trial because the offenses were distinct and the prior acquittal did not bar prosecution of the separate charge.
Tamara Tan received a life sentence in a capital murder trial after the jury deadlocked on aggravating factors. At retrial the state sought the death penalty. The court permitted the capital prosecution because the first proceeding produced no acquittal-like finding that legally entitled the defendant to a life sentence.
Thomas Thompson entered a conditional guilty plea that expressly waived double-jeopardy objections to later charges. After the plea was accepted the government filed additional counts based on the same conduct. The court enforced the waiver and allowed the new charges to proceed.
Jeopardy attaches when the jury is empaneled and sworn. Once attachment occurs, a subsequent prosecution for the same offense is barred unless the first proceeding terminated in a manner that permits retrial, such as a reversal for evidentiary error.
Yes. After a conviction or acquittal on a greater offense, the Double Jeopardy Clause prohibits a later prosecution for a lesser included offense based on the same conduct.
Yes. The Fifth Amendment protection is incorporated into the Fourteenth Amendment and therefore binds the states to the same bar on successive prosecutions that applies in federal court.
When a defendant elects to sever charges that could have been tried together, the first trial does not bar subsequent trials on the remaining charges under principles of issue preclusion.
…crime, unless on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . . ." And the Fourteenth Amendment, adopted over three-quarters of a century later,…