Double Jeopardy

The Heritage Guide to the Constitution

Double Jeopardy

Amendment V

...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb....

Although the principle can be found in Greek, Roman, and canon law, the prohibition against double jeopardy came into the United States Constitution from English common law. According to Sir William Blackstone’s Commentaries on the Laws of England, it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.” A defendant to a criminal charge could plead either a former conviction or a former acquittal to the same offense and have the charges dismissed.

All state constitutions drafted prior to the Bill of Rights contained a double jeopardy provision. The principle was so universal that when James Madison proposed on the floor of the First Congress that “No person shall be subject, except in cases of impeachment, to more than one punishment, or trial for the same offence,” members rose to object that the language was not strong enough. Representatives Egbert Benson and Roger Sherman declared that the wording would prevent a new trial for a person who had been improperly convicted. Others argued that it should stand as drafted, because it was merely “declaratory of the law as it now stood.” The House defeated an attempt to remove the words “or trial,” but the Senate revised the language to its present form, which the House accepted.

The history of the interpretation of the Double Jeopardy Clause by the Supreme Court is complex, and, as the Court itself confessed, it is not a “model of consistency and clarity.” Burks v. United States (1978). Over time, however, the Court identified the clause as embodying three protections of the individual against the government: (1) no second prosecution for the same offense after an acquittal (2) no second prosecution for the same offense after a guilty verdict and (3) no multiple punishments for the same offense. See Monge v. California (1998). The Court recognized early on that the clause could not be read literally; it refers only to “jeopardy of life or limb,” a reference that made sense when most serious offenses were sanctioned by capital punishment but hardly makes sense today, when most sanctions are merely a fine or imprisonment. Despite the wording of the clause, the Court applies it to any indictment or information charging a person with any statutory or common law felony or misdemeanor sanctioned by death, imprisonment, or fine. Of course, the Double Jeopardy Clause originally applied only to the federal government, Palko v. Connecticut (1937), but in Benton v. Maryland (1969), the Court held that the Double Jeopardy Clause of the Fifth Amendment applied to the states as well as to the federal government.

Current double jeopardy jurisprudence falls under five basic headings: sovereign, sanction, trial, retrial, and offense.

First, the Court reads the Double Jeopardy Clause as a protection against conduct by the same “sovereign.” Accordingly, since the federal government is, like each state, a separate “sovereign,” the Double Jeopardy Clause does not prohibit a federal prosecution after a state prosecution. Despite the doctrine, the federal government as a matter of policy will not prosecute a matter first prosecuted at the state level, absent unusual circumstances. The clause does not prohibit a state prosecution following a federal prosecution or successive prosecutions by different states. But it does prohibit successive prosecutions by the state and a local government under it or by two local governments in the same state, because each derives its sovereign authority from a common source, the state constitution. Indian entities are separate sovereigns.

Second, a sanction counts for double jeopardy purposes only if it is a criminal “punishment.” What counts as a punishment for double jeopardy purposes depends on the nature of the sanction imposed. Based on identical conduct, a civil forfeiture of property may follow a criminal acquittal of the owner of the property. Civil fines are not a form of criminal punishment. But a tax may not be specially imposed on criminal conduct. The retention of a sexual predator in civil confinement after his criminal term of imprisonment ends is constitutional: the Court holds that the confinement is punishment under neither the Double Jeopardy nor the Ex Post Facto Clause.

Third, determining when a “lawful trial” begins and ends is crucial to the application of the concept of double jeopardy. Accordingly, the court must have jurisdiction over the offense. Jeopardy attaches in a bench trial when the first witness is sworn; it begins in a jury trial when the jury is sworn. The trial ends with an acquittal, that is, a decision of not guilty on the facts, whether the decision is legally right or legally wrong, even if the acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States (1962). An appellate court may also grant an acquittal.

Fourth, the Double Jeopardy Clause does not absolutely prohibit retrials. Because a defendant who bribed a court to attain an acquittal was never in jeopardy, his retrial is constitutional. The clause is no bar to a new trial when the defendant successfully appeals his conviction, but a successful appeal of a lesser charge (manslaughter) by a defendant precludes a retrial on a greater charge (murder). Nor may a new trial be held if an appellate court finds that the conviction was not based on sufficient evidence. On the other hand, retrials may be held when a defendant requests a mistrial or when a “manifest necessity” is present. Manifest necessity is present, for example, if the jury deadlocks or is unduly influenced by the misconduct of the defense counsel. Because an appeal review of a trial court’s finding of manifest necessity is highly deferential, the appeal court seldom reverses it.

Fifth, a crucial issue turns on the definition of “offense.” Modern criminal law is characterized by “specificity in draftsmanship”; it is also characterized, as a result, by an “extraordinary proliferation of overlapping and related statutory offenses.” Ashe v. Swenson (1970). Double jeopardy protections depend, therefore, on a careful ascertaining of what constitutes an “offense,” that is, what is the “allowable unit of prosecution.” However, few limits, if any, are imposed by the Double Jeopardy Clause on the legislative power to define offenses. But once a legislature defines that proscription, it “determines the scope of protection afforded by a prior conviction or acquittal.” To ascertain whether two statutory offenses constitute two “offenses” for double jeopardy, prohibiting successive prosecutions, the Court follows a multiple-element test to determine whether each “offense” contains an element that is not common to the other. Blockburger v. United States (1932). Under the Blockburger test, the Double Jeopardy Clause prevents successive prosecutions for both greater and lesser included offenses. The focus of the test is on statutory elements rather than evidence or conduct. Nevertheless, a prosecution of a lesser offense (e.g., assault and battery) does not preclude the prosecution of a greater offense (murder) if all of the elements of the greater offense (e.g., death) were not present at the time of the prosecution of the lesser offense. On the other hand, a distinction is drawn between successive prosecutions and multiple punishments. Even if individual offenses are not separate under the Blockburger test, the Double Jeopardy Clause does not prevent multiple punishments for them when the courts try them together, when the legislature intended the higher level of punishment.

G. Robert Blakey

The William J. and Dorothy K. O'Neill Chair in Law, Notre Dame Law School

Roscoe Pound, The Development of Constitutional Guarantees of Liberty (1957)

Thirty-First Annual Review of Criminal Procedure, 90 Geo. L.J. 1087 (2002)

United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824)

Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874)

United States v. Ball, 163 U.S. 662 (1896)

Blockburger v. United States, 284 U.S. 299 (1932)

Palko v. State of Connecticut, 302 U.S. 319 (1937)

United States v. Green, 355 U.S. 184 (1957)

Petite v. United States, 361 U.S. 529 (1960)

Fong Foo v. United States, 369 U.S. 141 (1962)

Benton v. Maryland, 395 U.S. 784 (1969)

Waller v. Florida, 397 U.S. 387 (1970)

Brown v. Ohio, 432 U.S. 161 (1977)

Burks v. United States, 437 U.S. 1 (1978)

Sanabria v. United States, 437 U.S. 54 (1978)

Missouri v. Hunter, 459 U.S. 359 (1983)

Heath v. Alabama, 474 U.S. 82 (1985)

Kansas v. Hendricks, 521 U.S. 346 (1997)

Monge v. California, 524 U.S. 721 (1998)

Smith v. Massachusetts, 543 U.S. 426 (2005)

Renico v. Lett, 130 S. Ct. 1855 (2010)