Double jeopardy

From Academic Kids

Double jeopardy is a procedural defense (and, in the United States, a constitutional right) that forbids a defendant from being tried a second time for a crime, after having already been tried for the same crime. At common law a defendant can plead autrefois acquit or autrefois convict; meaning the defendant has been acquitted or convicted of the same offence previously.


United States

The phrase "double jeopardy" stems from the Fifth Amendment to the US Constitution: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." This clause is intended to limit prosecutorial abuse by the government in repeated prosecution, for the same offense, as a means of harassment or oppression. It is also in harmony with the common law concept of res judicata, which prevents courts from relitigating issues and claims that have already been the subject of a final judgment.

There are three essential protections included in double jeopardy: protection from being retried for the same crime after an acquittal; protection from retrial after a conviction; and protection from being punished multiple times for the same offense.

This law is occasionally referred to as a legal technicality, because it allows defendants a defense that does not address whether the crime was actually committed. For example, were police to uncover new evidence conclusively proving the guilt of someone previously acquitted, there is little they can do because the defendant may not be tried again.

Though the Fifth Amendment applies only to the federal government, the Supreme Court has ruled that the double jeopardy clause applies to the states as well, through incorporation by the Fourteenth Amendment.

Jeopardy attaches in a jury trial once the jury and alternates are empaneled and sworn in. In a non-jury trial, jeopardy attaches once the first evidence is put on, which occurs when the first witness is sworn.

Exceptions to double jeopardy

As double jeopardy only applies to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause, because a mistrial ends a trial prematurely without a judgment of guilt or innocence. Cases which have been dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for limited prosecutorial appeals from these orders. A re-trial after a conviction has been reversed on appeal also does not violate double jeopardy, because the judgment in the first trial has been invalidated. In both of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.

There are two exceptions to the general rule that the prosecution cannot appeal from an acquittal. If the earlier trial is proven to be a fraud or sham, double jeopardy will not prohibit a new trial. In Aleman v Judges of the Circuit Court ( (1998), an appeals court ruled that a man who bribed his trial judge and was acquitted of murder was allowed to be tried again, because his bribe prevented his first trial from actually putting him in jeopardy. The other exception is that prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding the verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict, and so would not place the defendant at risk of another trial.

The Supreme Court has also upheld laws allowing the government to appeal criminal sentences in limited circumstances (such as 18 U.S.C. 3742(b)). The Court ruled that sentences were not accorded the same constitutional finality as jury verdicts under the double jeopardy clause, and giving this right of appeal also did not put the defendant at risk of a succession of prosecutions.

Double jeopardy is also not implicated for separate offenses or in separate jurisdictions arising from the same act. For example, in United States v. Felix ( (1992), the Supreme Court ruled: "a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes." As another example, a state might try a defendant for murder, after which the federal government might try the same defendant for a federal crime (perhaps a civil rights violation or kidnapping) related to the same act. For example, the policemen who beat up black motorist Rodney King in 1991 were acquitted by a county court of the accusation of assault; some were sentenced in federal court for violating his civil rights. Similar techniques were used for prosecuting racially-motivated crimes in the Southern United States in the 1960s, which were not actively prosecuted nor convicted in local courts. Another example, Timothy McVeigh, was sentenced to death for murdering eight US federal employees with a bomb, but could also have been tried in state court for murdering the rest of those whom he killed in the same explosion.

Double jeopardy also does not attach if the later charge is civil rather than criminal in nature, which involves a different legal standard. Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though res judicata operates within the civil law system.) For example, O.J. Simpson was acquitted of double homicide, but lost a wrongful death civil claim brought over the same victims. If the defendant happened to be on parole from an earlier offense at the time, the act for which he was acquitted can also be the subject of a parole violation hearing, which is not considered a criminal trial and is also subject to a lower standard of proof.


In contrast to other common law jurisdictions, Australian double jeopardy law extends to prevent prosecution for perjury following a previous acquittal where a finding of perjury would controvert the previous acquittal. This was confirmed in the case of The Queen v Carroll, where the police found new evidence convincingly disproving Caroll's sworn alibi two decades after he had been acquitted of the murder of a young girl and successfully prosecuted him for perjury. Public outcry following the overturning of his conviction by the High Court has led to widespread calls for reform of the law along the lines of the UK legislation.


All members of the Council of Europe (which includes nearly all European countries, and all members of the European Union) have signed the European Convention of Human Rights, which protects against double jeopardy. The Seventh Protocol, Article Four, says:

No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

This specific optional protocol has been ratified by all EU states except six (namely Belgium, Germany, The Netherlands, Portugal, Spain and the United Kingdom). Those members states may still have the provision in their respective constitutions providing a prohibition against double jeopardy.

In many European countries the prosecution may appeal an acquittal to a higher court, and this is not counted as double jeopardy but as a continuation of the same trial. This is allowed by the European Convention of Human Rights: note the word finally in the above quote.


Once all appeals have been exhausted on a case, the judgment is final and the action of the prosecution is closed (code of penal procedure, art. 6), except if the final ruling was forged. Prosecution for an already judged crime is impossible even though new incriminating evidence has been found. However, a person who has been convicted may request another trial on grounds of new exculpating evidence.

United Kingdom

The Parliament of the United Kingdom passed legislation in the Criminal Justice Bill 2003 introduced by then Home Secretary David Blunkett to abolish the previously strict form of prohibition of double jeopardy. Retrials are now allowed if there is 'new and compelling evidence'.

External Links

FindLaw Annotation (

Double Jeopardy

Double Jeopardy (note proper capitalisation) has alternate uses.


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