Double Jeopardy Meaning: How It Works and When It Doesn’t Apply

We hear the term “double jeopardy” thrown around a lot in courtroom dramas and there’s even a 1999 movie of the same name. Despite—or perhaps because of—the fact that the term is so prevalent in popular culture, the true meaning is not well understood outside of the legal profession.

What does double jeopardy mean?

Double jeopardy means that, once a criminal case has reached a certain point, the government generally cannot prosecute a person a second time for the same offense or punish them more than once for it. The rule comes from the Fifth Amendment to the U.S. Constitution, which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” In Benton v. Maryland, the U.S. Supreme Court held that this protection applies to the states through the Fourteenth Amendment, so it covers defendants in New York courts as well as federal courts. New York adds its own protection in its State Constitution and in the double jeopardy provisions of the Criminal Procedure Law (CPL).

The clause protects against three things: a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for the same offense. As the Supreme Court put it in Green v. United States, the State, “with all its resources and power,” should not be allowed to make repeated attempts to convict an individual for an alleged offense.

The idea is older than the Constitution itself. It has roots in Greek and Roman law and developed in English common law before the framers wrote it into the Bill of Rights. It matters because:

• Repeated prosecutions take a heavy toll. A criminal case is expensive and stressful and can affect a person’s job, finances and family for years.
• Verdicts should be final. When a jury acquits, or a judge finds a defendant not guilty after a bench trial, the prosecution cannot appeal that decision.
• It encourages careful charging. Because prosecutors generally get one chance, they have reason to decide carefully what to charge.
• It limits punishment. A court cannot impose more than one punishment for the same offense unless the legislature authorized it.
• It checks government power. The government usually has far greater resources than an individual and cannot use them to wear a person down with trial after trial.

How double jeopardy works in practice

Double jeopardy questions usually turn on two issues: whether jeopardy attached in the first case, and whether the new charge is the “same offense.”

Federal courts answer the second question with the “same elements” test from Blockburger v. United States: two charges are separate offenses if each requires proof of a fact the other does not. That is why a single incident can sometimes support more than one charge without violating the Fifth Amendment.

New York law goes further. Under the CPL, a person generally may not be separately prosecuted for two offenses based on the same act or criminal transaction, unless one of the exceptions listed in the statute applies. The CPL also counts a prosecution in another jurisdiction within the United States as a prior prosecution, so an earlier federal case can, in some situations, bar a later New York case for the same conduct.

When does double jeopardy attach?

For a criminal defendant to be protected by this Fifth Amendment clause, the government must place him or her “in jeopardy.” This typically takes effect the moment that the court swears in the jury or, in a trial before a judge, after the first witness is sworn in and starts testifying. Each situation represents a point of no return where double jeopardy attachment is concerned.

The U.S. Supreme Court confirmed the jury rule for state cases in Crist v. Bretz. New York’s CPL sets the same points: a person is considered “prosecuted” once a jury has been impaneled and sworn or, in a nonjury trial, once a witness is sworn, and a guilty plea that results in a conviction also counts. Before then, for example at an arrest, an arraignment or a grand jury presentation, jeopardy has not attached, although other rules may limit when the government can refile charges.

Exceptions: separate sovereigns, mistrials, appeals, civil suits

After jeopardy has attached, certain events can cause it to terminate and allow authorities to try a criminal defendant once again for the same alleged crime. These events include:

• A hung jury and other instances of a mistrial
• The case is dismissed before a verdict on a ground unrelated to guilt or innocence, usually at the defense’s request (a mid-trial dismissal for insufficient evidence counts as an acquittal and bars retrial)
• A conviction being reversed on appeal (Note: while the defense may appeal a conviction, the prosecution may not do the same for an acquittal)

These exceptions have limits. A retrial after a hung jury is allowed because no verdict was reached, but if a prosecutor deliberately provokes the defense into requesting a mistrial, a retrial can be barred (Oregon v. Kennedy). When an appeals court reverses a conviction because the evidence was legally insufficient, the government cannot try the case again (Burks v. United States); a retrial is generally permitted only when the reversal rests on a trial error, such as an improper jury instruction.

An especially notable exception is the separate sovereigns rule. Because the states and the federal government are separate “sovereigns” (for example, the State of New York and the U.S. federal government), each may prosecute a defendant under its own laws for the same conduct. The Supreme Court reaffirmed this rule in Gamble v. United States. One high-profile example was the Rodney King case. When California failed to secure a conviction of the officers who were seen beating Mr. King on videotape, the federal government charged them with violating his civil rights, and two of the officers were convicted. Those convictions were legally valid because they came from a separate sovereign. For cases brought in New York, the CPL narrows the rule further, as explained above.

Civil lawsuits are a separate matter. Double jeopardy protects against criminal prosecution and punishment, so a person who is acquitted can still be sued for money damages over the same events, where the standard of proof is lower.

Double jeopardy examples

• Acquittal, then new evidence: A jury acquits a defendant of robbery. Months later, police find new evidence pointing to the same person. The state cannot retry the defendant for that robbery, however strong the new evidence is. The same is true for murder: an acquittal on a murder charge is final.
• Hung jury: The jurors cannot agree and the judge declares a mistrial. Because no verdict was reached, prosecutors can generally try the case again.
• Assault, then homicide: A person is convicted of assault, and the victim later dies from the injuries. Both federal law and the CPL allow a later homicide prosecution in that situation.
• State and federal charges: A person faces New York and federal charges for the same conduct. The Constitution allows both, but if the federal case comes first, New York law may bar the state case.
• Criminal acquittal, civil liability: O.J. Simpson was acquitted of murder and later found liable for wrongful death in a civil trial. The civil verdict did not violate double jeopardy because it was not a criminal prosecution.

Double jeopardy FAQ

What does double jeopardy mean in simple terms?

Double jeopardy means the government generally cannot prosecute you twice for the same offense, or punish you twice for it, once jeopardy has attached. The rule comes from the Fifth Amendment and applies in every state. New York adds its own protections in its State Constitution and in the Criminal Procedure Law.

How does double jeopardy work?

Once jeopardy attaches, when the jury is sworn or, in a bench trial, when the first witness is sworn, an acquittal or conviction generally ends the case for that offense. A second prosecution is barred unless an exception applies, such as a hung jury, a conviction reversed for trial error, or a separate sovereign bringing its own charges.

Is double jeopardy real?

Yes. Double jeopardy is a real constitutional protection, not just a TV plot device. The movie Double Jeopardy suggests a person wrongly convicted of murder could later kill the supposed victim without consequence, but a later killing would be a new act and a new offense.

When does double jeopardy not apply?

Double jeopardy does not apply before jeopardy attaches, to civil lawsuits, or when a separate sovereign brings its own charges. It also generally allows a retrial after a hung jury, after a mistrial the defense requested (unless the prosecution deliberately provoked it), and after a conviction is reversed on appeal for trial error rather than insufficient evidence.

Does double jeopardy apply to state and federal charges?

Under the U.S. Constitution, it does not stop both from going forward. The state and federal governments are separate sovereigns, so each may prosecute the same conduct (Gamble v. United States). New York law is more protective in one direction: under the CPL, an earlier federal prosecution for the same act or criminal transaction can bar a later New York prosecution, subject to the exceptions in the statute.

If you are facing charges in New York and believe an earlier case may bar the new ones, speak with a criminal defense attorney before you respond. Julie Rendelman is a New York criminal defense attorney who offers free consultations to those seeking legal advice. Contact our office to learn more about your legal rights.