When Does Double Jeopardy Apply?

The Fifth Amendment’s protection against double jeopardy primarily applies to criminal cases. It states you cannot be prosecuted twice for the same criminal charge. This applies to both the federal government and state courts. The application of protection varies depending on the stage reached by a case within the criminal justice system.

What the Fifth Amendment Says:

The double jeopardy clause of the Fifth Amendment states:

“…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;”

Historical Background of Double Jeopardy

The principle of double jeopardy found its way into English common law during the medieval period. The early English legal system protected people from repeated punishments for the same offense. This principle was enshrined in the Magna Carta of 1215.

Double jeopardy protections were brought to America by English colonists. It became a fundamental aspect of American jurisprudence. The English legal traditions that influenced the Founding Fathers made them cautious of potential government abuse. As a result, they incorporated protections against double jeopardy into the Bill of Rights.

The Fifth Amendment to the U.S. Constitution was ratified in 1791 as part of the Bill of Rights. It explicitly prohibits subjecting individuals to double jeopardy. The Founders intended to protect Americans from oppressive governmental actions. This would ensure fairness and justice in the legal system.

United States v. Perez (1824)

Few cases have had as profound an impact on the interpretation of the Fifth Amendment's double jeopardy clause as United States v. Perez. This case was decided on March 17, 1824, by the United States Supreme Court. It arose from a trial court in the southern district of New York.

The question presented to the Court was whether a mistrial due to a hung jury constituted double jeopardy, thus barring the defendant's retrial, Josef Perez.

Delivering the opinion of the Court, Justice Joseph Story articulated the central issue:

Did the jury's discharge without the defendant's or the prosecution's consent constitute a bar to any future trial for the same offense?

The Supreme Court held that it did not.

Justice Story emphasized that the law vested courts with authority to discharge a jury from giving any verdict when, in their judgment, there was a manifest necessity for the act or the ends of public justice would otherwise be defeated.

The Court recognized that defining all circumstances warranting such action was impossible and that the power to discharge a jury should be exercised cautiously. This is especially true in capital cases. However, it concluded that such a discharge did not constitute a bar for further proceedings. It did not exempt the defendant from being retried.

United States v. Perez established a crucial exception to the principle of double jeopardy. It permitted retrial in cases of mistrials due to hung juries. This ruling recognized the practical realities of the legal system, where juries may fail to reach unanimous verdicts. This would require new trials to ensure justice. The decision underscored the discretion of courts in managing trials. It also highlighted the balance between protecting constitutional rights and upholding justice.

Benton v. Maryland (1969)

In Benton v. Maryland, the United States Supreme Court addressed a critical issue involving the double jeopardy clause of the Fifth Amendment.

This criminal law case arose when John Dalmer Benton was re-indicted and retried for larceny and burglary after initially being acquitted of larceny but convicted of burglary. Benton argued that his retrial for larceny violated the double jeopardy clause, which the trial court denied.

The Supreme Court ultimately ruled that the Fifth Amendment's double jeopardy prohibition is enforceable against the states through the Fourteenth Amendment. This decision reversed Benton's larceny conviction and reinforced the constitutional protection against being tried twice for the same offense.

Burks v. United States (1978)

The landmark Supreme Court case Burks v. United States significantly impacted the interpretation of the double jeopardy clause of the Fifth Amendment.

The case involved the petitioner, Burks, who was convicted of bank robbery. His defense centered on claims of insanity, supported by expert testimony. However, the government presented its own witnesses, and the jury found Burks guilty. The district court denied Burks' motion for a new trial based on insufficient evidence.

The court of appeals later found the evidence insufficient to support the conviction and remanded the case to the district court. The Supreme Court ultimately ruled that the double jeopardy clause precluded a second trial, establishing a precedent.

Burks v. United States distinguished between reversals due to trial error and those due to insufficient evidence. The Court emphasized that a reversal based on insufficient evidence fundamentally differs from a reversal due to trial errors (such as procedural mistakes). When an appellate court reverses a conviction due to insufficient evidence, it acknowledges that the prosecution failed to meet its burden of proof. This insufficiency signifies that the defendant should never have been convicted in the first place.

Allowing a retrial would give the prosecution an unfair second chance to present additional evidence it failed to produce in the first trial. A second prosecution would not be just.

The ruling in Burks also impacted how appellate courts handle cases involving claims of insufficient evidence. Before Burks, courts sometimes ordered new trials even when they found the evidence in the initial trial insufficient. The Supreme Court's decision clarified that direct an acquittal is the only appropriate remedy in such cases.

Application Across Different Stages of the Criminal Justice Process

Understanding when double jeopardy attaches requires examining the stage of the criminal proceedings and the nature of the events that unfold within them.

Pre-Trial Proceedings

Double jeopardy is not typically invoked before a trial commences. This is because jeopardy—the risk of conviction and punishment—has not yet been attached. Thus, the government retains the discretion to:

• Dismiss charges
• Amend indictments
• Refile charges if necessary

A criminal case often has several pretrial hearings and motions before trial begins. 

Trial

Once a jury trial begins, jeopardy attaches when the jury is sworn in or, in a bench trial, when the first witness is sworn in. From this point forward, the defendant is protected from being tried again for the same offense if the trial ends in an acquittal or a conviction.

Acquittal

If a defendant is acquitted, whether by a jury verdict or a judge's ruling, the protection against double jeopardy is fully realized. The government cannot appeal an acquittal or subject the defendant to a new trial for the same offense.

Conviction

Similarly, double jeopardy prohibits successive prosecutions for the same offense if a defendant is convicted. The defendant’s right is to be protected from another trial for the same conduct.

Mistrials

There are exceptions to the rule of double jeopardy, particularly in cases of mistrials. A mistrial occurs when the trial is terminated without a final verdict, often due to a hung jury, procedural errors, or prosecutorial misconduct. In such instances, double jeopardy may not bar retrial if the mistrial was declared for reasons unrelated to the merits of the case.