Learning Outcomes
After reading this article, you will be able to explain the constitutional protection against double jeopardy, identify when the Double Jeopardy Clause applies, distinguish between the same offense and separate offense, and recognize exceptions that permit retrial. You will be equipped to answer MBE questions on when prosecution or punishment is barred by double jeopardy and when it is allowed.
MBE Syllabus
For MBE, you are required to understand the scope and limits of double jeopardy protection under the Fifth Amendment. This includes:
- The meaning and application of the Double Jeopardy Clause.
- What constitutes the "same offense" for double jeopardy purposes.
- The difference between prosecution after acquittal, conviction, or mistrial.
- Exceptions allowing retrial after mistrial, appeal, or in separate sovereigns.
- The effect of lesser included offenses and multiple punishments.
- The timing of when jeopardy attaches in criminal proceedings.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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The Double Jeopardy Clause prohibits:
- All retrials after a conviction.
- Multiple prosecutions or punishments for the same offense by the same sovereign.
- Any prosecution after a mistrial.
- Prosecution by a different state for the same conduct.
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When does jeopardy "attach" in a jury trial?
- When the indictment is filed.
- When the first witness is sworn.
- When the jury is empaneled and sworn.
- When the verdict is announced.
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Which of the following is NOT an exception to the double jeopardy bar?
- Retrial after a hung jury.
- Retrial after a defendant’s successful appeal.
- Retrial by a different sovereign.
- Retrial after an acquittal.
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If a defendant is convicted of both robbery and the lesser included offense of larceny for the same act, double jeopardy:
- Bars punishment for both.
- Allows punishment for both.
- Bars punishment for the greater offense only.
- Is not implicated.
Introduction
The Double Jeopardy Clause of the Fifth Amendment protects individuals from being prosecuted or punished more than once for the same offense by the same sovereign. This protection is fundamental in criminal law and is frequently tested on the MBE. Understanding when double jeopardy applies, when it does not, and the recognized exceptions is essential for exam success.
Key Term: Double Jeopardy Clause
The constitutional provision in the Fifth Amendment that prohibits any person from being "twice put in jeopardy of life or limb" for the same offense by the same sovereign.
When Does Double Jeopardy Protection Apply?
The Double Jeopardy Clause bars:
- A second prosecution after acquittal for the same offense.
- A second prosecution after conviction for the same offense.
- Multiple punishments for the same offense in a single proceeding.
However, it does not bar prosecution or punishment by a different sovereign (such as a state and the federal government).
Key Term: Same Offense
For double jeopardy, two crimes are the "same offense" unless each requires proof of a fact that the other does not (the Blockburger test).
When Does Jeopardy "Attach"?
Jeopardy "attaches"—meaning double jeopardy protection begins—at a specific point in the criminal process:
- In a jury trial: when the jury is empaneled and sworn.
- In a bench trial: when the first witness is sworn.
- In juvenile proceedings: at the start of the adjudicatory hearing.
Before jeopardy attaches, the prosecution can dismiss or refile charges without double jeopardy consequences.
Key Term: Attachment of Jeopardy
The procedural moment when a defendant is at risk of conviction and punishment, triggering double jeopardy protection.
What Is the "Same Offense"?
To determine if two charges are the "same offense," courts use the Blockburger test: each offense must require proof of a fact that the other does not. If one offense is a lesser included offense of the other (e.g., larceny is included in robbery), they are considered the same offense for double jeopardy purposes.
Worked Example 1.1
A defendant is tried and acquitted of burglary. The state then charges him with larceny based on the same incident. Is this prosecution barred?
Answer:
Yes. Larceny is a lesser included offense of burglary (as charged), so both are the "same offense." Acquittal on the greater offense bars prosecution for the lesser included offense.
Exceptions: When Retrial Is Permitted
Double jeopardy protection is strong, but there are important exceptions where retrial is allowed:
- Hung Jury: If the jury cannot reach a verdict (hung jury), the prosecution may retry the defendant.
- Mistrial at Defendant’s Request: If the defendant requests or consents to a mistrial (except when provoked by prosecutorial misconduct intended to force a mistrial), retrial is permitted.
- Successful Appeal: If the defendant is convicted, appeals, and the conviction is reversed (except for insufficient evidence), retrial is allowed.
- Separate Sovereigns: Different sovereigns (e.g., state and federal, or two different states) may each prosecute for the same conduct.
Key Term: Separate Sovereigns Doctrine
The principle that different governments (such as a state and the federal government) may each prosecute the same act without violating double jeopardy.
Acquittal, Conviction, and Mistrial
- Acquittal: A verdict of not guilty is final. The prosecution cannot appeal or retry, even if new evidence emerges.
- Conviction: After conviction, retrial is generally barred unless the defendant successfully appeals (except for insufficient evidence).
- Mistrial: If a mistrial is declared due to manifest necessity (e.g., hung jury), retrial is allowed.
Worked Example 1.2
A defendant is tried for robbery. The jury cannot agree on a verdict, and a mistrial is declared. Can the state retry the defendant?
Answer:
Yes. Retrial after a hung jury is not barred by double jeopardy.
Lesser Included Offenses and Multiple Punishments
A defendant cannot be convicted or punished for both a greater offense and a lesser included offense arising from the same act. If both are charged and convicted, punishment for the lesser offense must be vacated.
Worked Example 1.3
A defendant is convicted of both robbery and larceny for the same act. What is the result under double jeopardy?
Answer:
The defendant cannot be punished for both. The court must vacate the conviction or sentence for the lesser included offense.
Retrial After Appeal
If a defendant is convicted and successfully appeals, retrial is generally permitted unless the reversal was due to insufficient evidence. If the appellate court finds the evidence at trial was legally insufficient, double jeopardy bars retrial.
Exam Warning
If a conviction is reversed for insufficient evidence, the prosecution may not retry the defendant. If reversed for trial error (e.g., improper jury instructions), retrial is allowed.
Separate Sovereigns
Double jeopardy does not bar prosecution by a different sovereign for the same conduct. For example, both a state and the federal government may prosecute the same act as separate offenses.
Revision Tip
On the MBE, always check if the second prosecution is by a different government. If so, double jeopardy does not apply.
When Does Double Jeopardy Not Apply?
Double jeopardy does not bar:
- Civil proceedings after a criminal trial (or vice versa).
- Administrative or disciplinary actions.
- Retrial after a mistrial due to manifest necessity.
- Prosecution by a different sovereign.
Key Point Checklist
This article has covered the following key knowledge points:
- The Double Jeopardy Clause bars multiple prosecutions or punishments for the same offense by the same sovereign.
- Jeopardy attaches in a jury trial when the jury is sworn, and in a bench trial when the first witness is sworn.
- The "same offense" is determined by the Blockburger test; lesser included offenses are the same offense.
- Retrial is allowed after a hung jury, mistrial at defendant’s request, or successful appeal (except for insufficient evidence).
- Separate sovereigns may each prosecute the same conduct.
- Double jeopardy does not bar civil or administrative actions.
Key Terms and Concepts
- Double Jeopardy Clause
- Same Offense
- Attachment of Jeopardy
- Separate Sovereigns Doctrine
