Constitutional protection of accused persons - Double jeopar...

Learning Outcomes

This article explains constitutional protection against double jeopardy, including:

• Identifying when the Fifth Amendment Double Jeopardy Clause applies in criminal proceedings and how it is incorporated against the states
• Determining the exact point at which jeopardy attaches in jury, bench, juvenile, and guilty-plea proceedings, and when it terminates
• Applying the Blockburger "same offense" test, spotting lesser included offenses, and distinguishing separate offenses involving different victims or sovereigns
• Distinguishing between acquittals, convictions, mistrials, and appeals, and predicting how each outcome affects the availability of a later prosecution
• Recognizing when retrial or multiple punishments are allowed under exceptions such as hung juries, manifest necessity, successful defense appeals, and separate sovereign prosecutions
• Spotting situations where double jeopardy does not apply at all, including civil actions, administrative or disciplinary sanctions, forfeitures, and grand jury or preliminary proceedings
• Using issue preclusion (collateral estoppel) principles that flow from double jeopardy to bar relitigation of ultimate facts decided in the defendant’s favor
• Evaluating whether a later-occurring fact, such as a victim’s death, creates a new offense that permits a subsequent prosecution despite an earlier case
• Avoiding common MBE traps involving grand juries, mistrials, appeals based on insufficient evidence versus trial error, separate sovereigns, and cumulative punishments at sentencing

MBE Syllabus

For the MBE, you are required to understand the scope and limits of double jeopardy protection under the Fifth Amendment, with a focus on the following syllabus points:

• The meaning and application of the Double Jeopardy Clause and its incorporation against the states, including juvenile delinquency proceedings
• What constitutes the "same offense" for double jeopardy purposes (Blockburger test, lesser included offenses, different victims)
• The difference between prosecution after acquittal, conviction, mistrial, or appeal, and how each outcome affects future prosecutions
• Exceptions allowing retrial after hung jury, mistrial (including manifest necessity), appeal, breach of plea agreement, or prosecution by separate sovereigns
• The effect of lesser included offenses and legislative intent regarding multiple punishments in a single proceeding
• The timing of when jeopardy attaches and ends in jury, bench, guilty-plea, and juvenile proceedings
• Situations where double jeopardy does not apply (civil actions, administrative sanctions, forfeitures, grand jury proceedings, preliminary hearings)
• The role of collateral estoppel (issue preclusion) as part of double jeopardy analysis

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.

1. The Double Jeopardy Clause prohibits:
   1. All retrials after a conviction.
   2. Multiple prosecutions or punishments for the same offense by the same sovereign.
   3. Any prosecution after a mistrial.
   4. Prosecution by a different state for the same conduct.
2. When does jeopardy "attach" in a jury trial?
   1. When the indictment is filed.
   2. When the first witness is sworn.
   3. When the jury is empaneled and sworn.
   4. When the verdict is announced.
3. Which of the following is NOT an exception to the double jeopardy bar?
   1. Retrial after a hung jury.
   2. Retrial after a defendant’s successful appeal.
   3. Retrial by a different sovereign.
   4. Retrial after an acquittal.
4. If a defendant is convicted of both robbery and the lesser included offense of larceny for the same act, double jeopardy:
   1. Bars punishment for both.
   2. Allows punishment for both.
   3. Bars punishment for the greater offense only.
   4. 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. A clear understanding of when double jeopardy applies, when it does not, and the recognized exceptions is essential for exam success.

The Clause has been incorporated through the Fourteenth Amendment, so it binds both the federal government and the states. It applies only in criminal cases (including juvenile delinquency adjudications), not ordinary civil litigation or purely administrative proceedings.

Key Term: Double Jeopardy Clause
The Fifth Amendment provision that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” preventing the same sovereign from bringing multiple criminal prosecutions or punishments for the same offense.

Constitutional Protections Covered by Double Jeopardy

The Double Jeopardy Clause provides three distinct protections:

• Protection against a second prosecution for the same offense after acquittal
• Protection against a second prosecution for the same offense after conviction
• Protection against multiple punishments for the same offense in a single proceeding (unless clearly authorized by the legislature)

Key Term: Jeopardy
The risk of criminal conviction and punishment that arises once a criminal proceeding reaches the stage where the factfinder is sworn and begins to hear evidence.

Each of these protections can be tested separately on the MBE, often in tricky fact patterns involving mistrials, appeals, different sovereigns (state vs. federal), or charging strategies (greater and lesser included offenses).

It is also important to distinguish between double jeopardy and broader fairness concepts:

• The clause does not guarantee that a defendant faces only one trial; in some situations (e.g., hung jury) multiple trials are constitutionally permitted.
• The clause does not bar all government action after a criminal prosecution; civil suits, forfeiture proceedings, parole and probation hearings, and professional discipline are generally unaffected, even if based on the same conduct.

Constitutional Protections Covered by Double Jeopardy (Expanded)

The three protections can be restated in MBE-friendly language:

• No second prosecution after acquittal: Once a defendant has been found not guilty of a particular offense by a valid judgment, that sovereign cannot try again for that same offense, regardless of how strong new evidence becomes.
• No second prosecution after conviction: Once a conviction has become final (no appeal or appeal concluded), that sovereign cannot bring another prosecution for the same offense.
• No multiple punishments for the same offense: In a single proceeding, the court generally may not impose more than one criminal punishment for the same offense, unless the legislature clearly says cumulative punishments are allowed.

Key Term: Multiple Punishments
Imposing more than one criminal punishment for the same offense in a single proceeding; barred by double jeopardy unless the legislature clearly intends to authorize cumulative punishments.

On the MBE, you must be able to identify which of these three protections is implicated by the facts and then analyze whether an exception applies.

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 (for example, sentencing a defendant on both a greater offense and its lesser included offense for the same act)

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 purposes, two crimes are the "same offense" unless each requires proof of a fact (element) that the other does not. This is the Blockburger “same elements” test.

Key Term: Lesser Included Offense
An offense whose elements are entirely contained within a greater offense, so that it is impossible to commit the greater without also committing the lesser.

Same Sovereign Requirement

Double jeopardy only restricts multiple prosecutions or punishments by the same sovereign:

• The federal government and each state government are separate sovereigns.
• Different states are separate sovereigns from one another.
• A state and its municipalities (cities, counties) are usually considered the same sovereign for double jeopardy purposes, because local prosecutors exercise state power.
• Native American tribes are generally treated as separate sovereigns from states and the federal government for conduct within tribal jurisdiction.

Key Term: Separate Sovereigns Doctrine
The principle that different governments (such as a state and the federal government, or two different states) may each prosecute the same conduct without violating double jeopardy.

Pay careful attention on the MBE to who is bringing each prosecution. A change in prosecutor alone is not enough; what matters is whether the prosecution is on behalf of a different government.

Acquittals

An acquittal—whether by jury verdict (“not guilty”), a judge’s directed verdict, or an appellate court’s ruling equivalent to an acquittal—ends jeopardy completely as to that offense:

• The prosecution cannot appeal an acquittal.
• The prosecution cannot retry the defendant for that same offense, even if overwhelming new evidence is found later.
• Issue preclusion may bar relitigation of facts necessarily decided in the defendant’s favor in the first trial.

Key Term: Acquittal
A final determination that the prosecution failed to prove guilt, ending jeopardy and absolutely barring retrial for the same offense by the same sovereign.

Several important points for exams:

• A ruling that the prosecution’s evidence is legally insufficient is treated as an acquittal, even if the judge calls it something else.
• An “implied acquittal” occurs when a jury convicts on a lesser included offense but returns no verdict on the greater offense; double jeopardy bars a later trial on the greater charge.
• By contrast, dismissal on procedural grounds (e.g., pre-indictment delay, improper venue) before a determination of guilt does not necessarily count as an acquittal and may allow reprosecution.

Convictions

After a valid conviction:

• If the defendant does not appeal, jeopardy ends when the time for appeal expires; the same sovereign cannot retry for that offense.
• If the defendant does appeal and wins a reversal, retrial is usually permitted (subject to the important insufficient evidence exception discussed below).
• The prosecution may sometimes appeal legal rulings affecting the conviction or sentence, as long as a successful appeal would not require a second determination of guilt on the same offense (for example, an appeal of a suppression order or an illegal sentence).

Once the conviction is truly final, the government may not circumvent double jeopardy by:

• Reindicting for the same offense under a different label, or
• Seeking to increase punishment for that offense by bringing a second prosecution.

Multiple Punishments in a Single Proceeding

The government may charge several offenses arising from the same course of conduct in one trial. Double jeopardy focuses on punishment, not charging:

• A defendant can be charged and tried simultaneously for an offense and for a lesser included offense.
• However, the defendant may not be punished (sentenced) for both when they are the same offense under Blockburger. One conviction or sentence must be vacated.

Key Term: Multiple Convictions Issue
The situation where a defendant is found guilty of both a greater and a lesser included offense; double jeopardy is resolved by vacating one conviction or sentence, not by forbidding the initial charges.

On the MBE, this is often tested as a sentencing issue: the trial was proper, but the judge may not impose cumulative punishments for the same offense unless the legislature clearly authorizes it (for example, separate punishments for felony murder and the predicate felony under a statute that expressly permits that).

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 delinquency proceedings: at the commencement of the adjudicatory hearing (when the court begins to hear evidence on the charged act).
• In a guilty plea proceeding: when the court unconditionally accepts the plea.

Before jeopardy attaches, the prosecution can dismiss, refile, or amend charges without double jeopardy consequences.

Key Term: Attachment of Jeopardy
The procedural moment when the factfinder (jury or judge) is sworn and begins to hear evidence (or a plea is accepted), triggering Double Jeopardy Clause protection.

Jeopardy generally does not attach in civil proceedings, grand jury proceedings, or preliminary hearings. For example:

• If a grand jury refuses to indict (“no bill”), the prosecutor may convene a new grand jury and seek an indictment again.
• If charges are dismissed at a preliminary hearing for lack of probable cause, the prosecution may later recharge when new evidence appears.

Also remember:

• A mistrial declared before jeopardy attaches (for example, because a juror falls ill before being sworn) has no double jeopardy consequence.
• Attachment is important for the second proceeding: even if the first case went to trial, double jeopardy is not implicated unless jeopardy also attaches in the second case.

When Does Jeopardy End

Jeopardy ends:

• On acquittal for that offense.
• On final conviction (no appeal or appeal concluded), unless the defendant successfully appeals on grounds that permit retrial.
• On a mistrial without manifest necessity when declared over the defendant’s objection; in that situation, retrial is barred.
• In capital cases with a separate penalty phase, a jury’s final rejection of the death penalty ends jeopardy as to the death sentence.

Once jeopardy has ended, subsequent attempts by the same sovereign to prosecute the same offense are barred, subject to narrow exceptions (such as later-occurring facts creating a new offense).

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. This is a same elements test, not a “same transaction” or “same conduct” test. Two crimes arising from the same incident are not necessarily the same offense.

• If each offense contains at least one unique element, they are separate offenses for double jeopardy purposes.
• If one offense’s elements are entirely included within the other, the lesser offense is a lesser included offense, and they are the same offense for double jeopardy purposes.

Key Term: Blockburger Test
The test for whether two offenses are the “same offense” for double jeopardy: ask whether each statutory provision requires proof of an element that the other does not.

Lesser Included Offenses

If one offense is a lesser included offense of the other (e.g., larceny included in robbery), they are considered the same offense for double jeopardy purposes. The government may not:

• Prosecute a defendant for a greater offense after a conviction (or acquittal) of a lesser included offense, unless some critical element (such as death of the victim) occurs only after the first trial; or
• Prosecute for a lesser included offense after a conviction or acquittal of the greater offense.

Common lesser-included relationships on the MBE include:

• Assault as a lesser included offense of robbery or battery.
• Attempt as a lesser included offense of the completed crime.
• Larceny as a lesser included offense of robbery or burglary (when burglary is defined as entry with intent to commit larceny).
• Battery as a lesser included offense of aggravated battery.

Offenses Involving Different Victims

Crimes involving different victims are treated as separate offenses even if committed in a single transaction. For example, killing two people with one shot can be prosecuted as two homicides; double jeopardy does not bar separate charges for each victim.

This is because each offense requires proof of harm to a different person, which is an additional element under the Blockburger test.

Continuing Offenses and Multiple Episodes

Some offenses are continuing (e.g., conspiracy, failure to register) while others are discrete:

• Each separate act of selling drugs is a distinct offense, even if part of a larger scheme.
• Each victim of fraud or theft can support a separate charge, even if all acts occur in one scheme.
• A single conspiracy, however, is usually one offense even if it has many overt acts; charging multiple conspiracies for the same agreement may violate double jeopardy.

The exam may use these distinctions to test whether a second prosecution is for the same offense or a different episode or victim.

Conspiracy and Substantive Offenses

Conspiracy and the substantive offense are generally separate under Blockburger because each contains an element the other does not:

• Substantive crime: commission of the actus reus.
• Conspiracy: agreement plus (often) an overt act.

Accordingly, a defendant may be prosecuted and punished for both conspiracy and the completed offense. The same is true for solicitation and the completed offense—these are usually separate crimes.

Worked Example 1.1

A defendant is tried and acquitted of burglary of a dwelling. The statute defines burglary as entering the dwelling of another with intent to commit larceny inside. The state then charges him with larceny based on the same incident, alleging he stole the homeowner’s TV.

Answer:
The second prosecution is barred. As charged, larceny is a lesser included offense of burglary; the burglary charge required proof of unlawful entry plus intent to commit larceny. Acquittal on the greater offense bars a later prosecution for the lesser included offense arising from the same incident.

Worked Example 1.2

A defendant is tried for robbery. The jury cannot agree on a verdict despite several days of deliberation, and the judge declares a mistrial because the jury is hopelessly deadlocked. The prosecutor seeks to retry the defendant for the same robbery.

Answer:
Retrial is allowed. A hung jury constitutes manifest necessity, so double jeopardy does not bar retrial after a mistrial caused by a deadlocked jury.

Different Statutes, Same Elements

Sometimes two different statutes criminalize overlapping conduct. Under Blockburger:

• If each statute requires proof of a fact that the other does not, separate punishments and prosecutions are allowed.
• If one statute’s elements are entirely included within the other, they are the same offense, and double jeopardy limits multiple prosecutions or punishments unless the legislature clearly authorizes cumulative penalties.

For the MBE, if the question does not indicate clear legislative intent to allow cumulative punishments, apply Blockburger strictly.

Exceptions: When Retrial Is Permitted

Double jeopardy protection is strong, but there are important exceptions where retrial is allowed even after jeopardy has attached.

Key Term: Manifest Necessity
A compelling reason to terminate a trial (e.g., deadlocked jury, juror illness, serious procedural defect), justifying a mistrial without barring retrial under the Double Jeopardy Clause.

Key Term: Hung Jury
A jury that, after full and fair deliberation, cannot reach a unanimous verdict (or required majority), leading to a mistrial and permitting retrial.

Key Term: Mistrial
Termination of a trial before verdict, usually due to a hung jury, serious procedural error, or necessity; retrial is allowed only in limited circumstances consistent with double jeopardy.

Hung Jury

If the jury cannot reach a verdict (hung jury), the court may declare a mistrial for manifest necessity. The prosecution may retry the defendant on all charges, even if the jury informally reported progress suggesting agreement on some counts but returned no formal verdict (as in the Supreme Court’s Blueford decision).

Key points:

• An informal report of votes is not a verdict.
• If no verdict is returned and a mistrial is declared because of a deadlock, retrial is permitted on all counts.

Mistrial at Defendant’s Request

If the defendant requests or clearly consents to a mistrial, retrial is generally permitted, because the defendant has chosen to terminate the first proceeding.

• This includes cases where the defendant moves for mistrial due to prejudicial publicity, juror bias, or errors in the trial.
• Double jeopardy protection is considered waived to that extent.

Exception: If the prosecution or court engages in misconduct intended to provoke the defendant into requesting a mistrial, double jeopardy may bar retrial. The key is the prosecutor’s intent to “goad” the defendant into moving for a mistrial, not mere negligence or error.

Mistrial for Manifest Necessity

If a mistrial is declared over the defendant’s objection, retrial is permitted only if there was manifest necessity (e.g., juror illness, deadlocked jury, a fundamental defect in the indictment that cannot be cured).

If there was no manifest necessity, double jeopardy bars retrial, because the defendant has a “valued right” to have the trial completed by the original tribunal once jeopardy has attached.

Examples of manifest necessity:

• A juror has a medical emergency and cannot continue, and no alternate is available.
• The jury is hopelessly deadlocked.
• A key piece of the indictment is fatally flawed and cannot be repaired during trial.

Examples where manifest necessity is lacking (likely barring retrial):

• The judge declares a mistrial simply because the trial is taking too long.
• The judge wants to give the prosecution another chance to improve its case.

Worked Example 1.3

In a felony trial, the jury is sworn and the prosecution presents two witnesses. The judge then realizes that she forgot to excuse one juror who had expressed serious bias during voir dire. Concerned about error, the judge declares a mistrial over the defendant’s objection and immediately sets the case for retrial.

Answer:
Retrial is likely permitted. Seating a biased juror is a fundamental problem with the tribunal and constitutes manifest necessity to abort the trial. Because the mistrial is justified by manifest necessity, double jeopardy does not bar retrial.

Acquittal, Conviction, and Mistrial

• Acquittal: A verdict of not guilty (or its equivalent) is final. The prosecution cannot appeal or retry, even if new evidence emerges or the trial judge made legal errors. Any ruling that the evidence is insufficient to convict, however labeled, counts as an acquittal.
• Conviction: After conviction, retrial is generally barred unless the defendant successfully appeals. Even then, if reversal is based on insufficient evidence, retrial is barred (see below).
• Mistrial: If a mistrial is declared due to manifest necessity (e.g., hung jury), retrial is allowed. If a mistrial is declared without manifest necessity and over the defendant’s objection, retrial is barred.

Also note:

• A mid-trial dismissal at the defendant’s request that does not resolve factual guilt on the merits (for example, for pre-indictment delay) may allow retrial, because it is not an acquittal.
• On the other hand, a dismissal based on a conclusion that the prosecution’s evidence cannot support a conviction (even if labeled “dismissal” rather than “acquittal”) functions as an acquittal and bars retrial.

Worked Example 1.4

During a bench trial, after the prosecution rests, the judge grants the defendant’s motion to dismiss on the ground that the evidence is insufficient to prove guilt beyond a reasonable doubt. The prosecution appeals and seeks a new trial.

Answer:
Retrial is barred. The judge’s ruling is an acquittal based on insufficient evidence, regardless of the label used. The Double Jeopardy Clause prohibits a second prosecution for that offense.

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 when both are the same offense under Blockburger. If both are charged and the jury returns guilty verdicts on both:

• The court may enter judgment on only one conviction (typically the greater offense), or
• The court must vacate the conviction or sentence for the lesser offense.

This is a sentencing double jeopardy issue, not a bar on charging.

Sometimes the legislature clearly indicates that cumulative punishments are allowed, even for offenses that overlap under Blockburger. In such cases, the Double Jeopardy Clause does not bar the legislature’s decision to allow multiple punishments in a single proceeding. On the MBE, unless the statute explicitly authorizes cumulative punishments, assume Blockburger controls.

Worked Example 1.5

A defendant is convicted of both robbery and larceny for the same act of taking a victim’s wallet by force.

Answer:
The defendant cannot be punished for both offenses because larceny is a lesser included offense of robbery. Under double jeopardy principles, the court must vacate the conviction or sentence for the lesser included offense (larceny).

Implied Acquittal and Greater Offenses

If the jury returns a guilty verdict on a lesser included offense and is silent on the greater offense:

• The defendant is treated as having been impliedly acquitted of the greater offense.
• The state may not retry the defendant on the greater offense after the conviction on the lesser is reversed on appeal at the defendant’s request. The prosecution may retry for the lesser offense (or another equal or lesser offense), but not for the greater.

This rule prevents the state from obtaining a second chance to convict on an offense that has already been rejected by the factfinder.

Later-Occurring Facts (e.g., Victim’s Death)

Sometimes a later event (such as the victim’s death) creates a new offense that could not have been prosecuted earlier. In such cases, double jeopardy does not bar prosecution for the new offense.

For example, a defendant may be convicted of reckless driving or battery, and then the victim later dies. A subsequent manslaughter prosecution is permitted because the completed homicide offense (requiring death) did not exist at the time of the first trial.

Worked Example 1.6

A driver pleads guilty to reckless driving after hitting a pedestrian and serves a 30-day sentence. One year later, the pedestrian dies from injuries caused by the accident. The state charges the driver with manslaughter within the applicable limitations period. The driver moves to dismiss based on double jeopardy.

Answer:
The motion should be denied. Reckless driving and manslaughter each contain an element the other does not (moving violation vs. death of another). The later manslaughter charge is not the same offense as reckless driving, and the manslaughter offense did not fully exist until the victim died.

Retrial After Appeal

If a defendant is convicted and successfully appeals, retrial is generally permitted unless the reversal was based on insufficient evidence to support the conviction.

• Reversal for Trial Error: If the conviction is reversed because of procedural or trial error (e.g., erroneous jury instructions, inadmissible evidence admitted, improper exclusion of defense evidence), retrial is allowed. The first trial is treated as if it never happened in terms of factual resolutions.
• Reversal for Insufficient Evidence: If an appellate court concludes that, even taking the evidence in the light most favorable to the prosecution, no rational factfinder could find guilt beyond a reasonable doubt, the defendant is entitled to an acquittal. Double jeopardy bars retrial.

Key Term: Insufficient Evidence Reversal
An appellate ruling that the prosecution’s evidence was legally inadequate to prove guilt beyond a reasonable doubt; it operates as an acquittal and bars retrial for that offense.

The MBE may test the distinction between:

• Reversal because the weight of the evidence does not support the verdict (retrial allowed), and
• Reversal because the legal sufficiency of the evidence is lacking (retrial barred).

Limits on Charges and Sentences on Retrial

• After reversal and retrial, the prosecution may not try the defendant for a more serious offense than the offense of which the defendant was convicted at the first trial.
• A harsher sentence on retrial is generally allowed, provided it is not motivated by judicial vindictiveness and remains within statutory limits.
• In capital cases with a separate penalty phase, if a jury at the first trial rejects the death penalty, the state may not seek a death sentence again after reversal and retrial.

Worked Example 1.7

A defendant is convicted of burglary. On appeal, the conviction is reversed because the trial court improperly admitted hearsay evidence. The prosecution wishes to retry the defendant for burglary.

Answer:
Retrial is permitted. The reversal is for trial error, not for insufficient evidence. Double jeopardy allows the state to retry the defendant for the same offense after such an appeal.

Worked Example 1.8

A defendant is convicted of robbery. On appeal, the court holds that, even accepting all the prosecution’s evidence as true, no rational juror could find that the defendant used or threatened force—an essential element of robbery. The conviction is reversed.

Answer:
Retrial is barred. The reversal is based on insufficient evidence as a matter of law. The defendant is entitled to an acquittal, and double jeopardy forbids a second trial for robbery arising from the same incident.

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, erroneous admission or exclusion of evidence, or weight-of-the-evidence concerns), retrial is allowed.

Separate Sovereigns

Double jeopardy does not bar prosecution by a different sovereign for the same conduct. This is known as the separate sovereigns (dual sovereign) doctrine.

Different sovereigns include:

• Federal and state governments
• Two different states
• In many contexts, a state and a Native American tribal government

However:

• Political subdivisions (e.g., a city and the state in which it is located) are usually considered the same sovereign for double jeopardy purposes.
• Territories and the federal government are often treated as the same sovereign, but this detail is unlikely to be tested on the MBE.

Even if successive prosecutions feel unfair, the separate sovereigns doctrine is a constitutional rule: joint prosecution may be limited by statute or policy, but not by the Double Jeopardy Clause.

Worked Example 1.9

A defendant is tried in State A court and acquitted of armed robbery of a federally insured bank. Federal prosecutors then charge the defendant in federal court with bank robbery arising from the same incident.

Answer:
The federal prosecution is not barred by double jeopardy. The state and federal governments are separate sovereigns, so each may prosecute the same conduct under its own criminal laws.

Revision Tip

On the MBE, always check whether the second prosecution is by a different government. If so, double jeopardy generally does not apply, and the separate sovereigns doctrine allows a second prosecution.

When Does Double Jeopardy Not Apply

Double jeopardy does not bar:

• Civil proceedings after a criminal trial (or vice versa), such as:
  • Civil damages actions by victims
  • Civil forfeiture actions to seize contraband or illegal proceeds
  • Deportation proceedings
• Administrative or disciplinary actions, such as:
  • Professional disciplinary hearings (e.g., disbarment, medical license revocation)
  • Prison disciplinary sanctions (loss of privileges, segregation)
  • Driver’s license suspension after DUI
• Grand jury proceedings, including:
  • Re-submission of a case to a new grand jury after a no-bill
  • Use of inadmissible or illegally obtained evidence in the grand jury
• Preliminary hearings and other pretrial proceedings where guilt is not finally adjudicated
• Retrial after mistrial due to manifest necessity:
• Prosecution by a different sovereign:
• Reinstatement of charges after defendant breaches a plea bargain (for example, by refusing to testify after agreeing to cooperate); the defendant is returned to the position before the plea and may be reprosecuted on the original charges.

Key Term: Collateral Estoppel (Issue Preclusion)
A component of double jeopardy that bars relitigation of an ultimate fact that was necessarily decided in the defendant’s favor in a prior criminal case between the same parties.

Note that collateral estoppel applies only after a valid final judgment (typically an acquittal) and only to facts necessarily decided. The exam may use this to bar a second prosecution that depends on a fact already resolved in the defendant’s favor.

Worked Example 1.10

A defendant is tried for robbing six poker players in a single game. The prosecution’s theory is that he was the masked gunman. The jury acquits. The state later charges him with robbing one of the same poker players during that same incident, presenting the same theory that he was the gunman.

Answer:
The second prosecution is barred. The first acquittal necessarily decided the issue of identity (that the defendant was not the gunman) in the defendant’s favor. Under collateral estoppel, the state cannot relitigate that fact in a second trial for an offense that depends on the same fact.

Key Point Checklist

This article has covered the following key knowledge points:

• The Double Jeopardy Clause bars multiple prosecutions and multiple punishments for the same offense by the same sovereign.
• Jeopardy attaches in a jury trial when the jury is empaneled and sworn, in a bench trial when the first witness is sworn, in juvenile adjudicatory hearings when evidence begins, and upon acceptance of a guilty plea.
• The "same offense" is determined by the Blockburger same-elements test; lesser included offenses are treated as the same offense.
• Crimes involving different victims, or prosecuted by different sovereigns, are generally treated as separate offenses for double jeopardy purposes.
• A defendant can be charged with both a greater and a lesser included offense in one trial but can be punished for only one, absent clear legislative authorization of cumulative punishments.
• Acquittals—express or implied—absolutely bar retrial for the same offense; the prosecution cannot appeal an acquittal.
• Retrial is allowed after a hung jury or a mistrial based on manifest necessity, and after a defendant’s successful appeal unless the reversal is based on insufficient evidence.
• A later-occurring fact, such as a victim’s death, can allow a new prosecution (e.g., manslaughter) even after an earlier conviction for a related offense (e.g., reckless driving).
• On appeal, reversal for trial error allows retrial; reversal for evidentiary insufficiency does not.
• Separate sovereigns (state/federal or state/state) may each prosecute the same conduct without violating double jeopardy.
• Double jeopardy does not bar civil, administrative, or grand jury proceedings; it is limited to criminal prosecutions and punishments.
• Collateral estoppel, as part of double jeopardy, can bar relitigation of facts necessarily decided in the defendant’s favor in a prior criminal case.

Key Terms and Concepts

• Double Jeopardy Clause
• Jeopardy
• Same Offense
• Lesser Included Offense
• Multiple Punishments
• Multiple Convictions Issue
• Attachment of Jeopardy
• Acquittal
• Blockburger Test
• Manifest Necessity
• Hung Jury
• Mistrial
• Insufficient Evidence Reversal
• Separate Sovereigns Doctrine
• Collateral Estoppel (Issue Preclusion)