Scotland
The double jeopardy rule no longer applies absolutely in Scotland since the Double Jeopardy (Scotland) Act 2011 came into force on 28 November 2011. The Act introduced three broad exceptions to the rule: where the acquittal had been tainted by an attempt to pervert the course of justice; where the accused admitted their guilt after acquittal; and where there was new evidence.
Northern Ireland
In Northern Ireland the Criminal Justice Act 2003, effective 18 April 2005, makes certain "qualifying offense" (including murder, rape, kidnapping, specified sexual acts with young children, specified drug offenses, defined acts of terrorism, as well as in certain cases attempts or conspiracies to commit the foregoing) subject to retrial after acquittal (including acquittals obtained before passage of the Act) if there is a finding by the Court of Appeal that there is "new and compelling evidence."
United States
The ancient protection of the Common Law against double jeopardy is maintained in its full rigor in the United States, beyond the reach of any change save that of a Constitutional Amendment. The Fifth Amendment to the United States Constitution provides:
... Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;…
Conversely, double jeopardy comes with a key exception. Under the dual sovereignty doctrine, multiple sovereigns can indict a defendant for the same crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts. However, in 2016, the Supreme Court held that Puerto Rico is not a separate sovereign for purposes of the Double Jeopardy Clause. The dual sovereignty doctrine has been the subject of substantial scholarly criticism.
As described by the U.S. Supreme Court in its unanimous decision concerning Ball v. United States 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial." The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy "attaches" when the jury is impaneled, the first witness is sworn, or a plea is accepted.
Prosecution after acquittal
With two exceptions, the government is not permitted to appeal or retry the defendant once jeopardy attaches to a trial unless the case does not conclude. Conditions which constitute "conclusion" of a case include
· After the entry of an acquittal,
· whether a directed verdict before the case is submitted to the jury,
· a directed verdict after a deadlocked jury,
· an appellate reversal for sufficiency (except by direct appeal to a higher appellate court),
· or an "implied acquittal" via conviction of a lesser included offense.
· re-litigating against the same defense a fact necessarily found by the jury in a prior acquittal, even if the jury hung on other counts. In such a situation, the government is barred by collateral estoppel.
In these cases, the trial is concluded and the prosecution is precluded from appealing or retrying the defendant over the offense to which they were acquitted.
This principle does not prevent the government from appealing a pre-trial motion to dismiss or other non-merits dismissal, or a directed verdict after a jury conviction, nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute. Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, including habeas corpus, or "thirteenth juror" appellate reversals notwithstanding sufficiency on the principle that jeopardy has not "terminated".
The "dual sovereignty" doctrine allows a federal prosecution of an offense to proceed regardless of a previous state prosecution for that same offense and vice versa because "an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each". The doctrine is solidly entrenched in the law, but there has been a traditional reluctance in the federal executive branch to gratuitously wield the power it grants, due to public opinion being generally hostile to such action.
Exceptions
The first exception to a ban on retrying a defendant is if, in a trial, the defendant bribed the judge into acquitting him or her, since the defendant was not in jeopardy.
The other exception to a ban on retrying a defendant is that a member of the armed forces can be retried by court-martial in a military court, even if he or she has been previously acquitted by a civilian court.
An individual can be prosecuted by both the United States and a Native American tribe for the same acts that constituted crimes in both jurisdictions; it was established by the Supreme Court in United States v. Lara that as the two are separate sovereigns, prosecuting a crime under both tribal and federal law does not attach double jeopardy.
Multiple punishments, including prosecution after conviction
In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless the governing statute legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.
The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction. In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was not satisfied, but Grady was overruled in United States v. Dixon (1993).
Prosecution after mistrial
The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith", i.e. goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial. The same standard governs mistrials granted sua sponte.
Retrials are not common, due to the legal expenses to the government. However, in the mid-1980s Georgia antique dealer James Arthur Williams was tried a record four times for the murder of Danny Hansford and (after three mistrials) was finally acquitted on the grounds of self-defense. The case is recounted in the book Midnight in the Garden of Good and Evil, which was adapted into a film, directed by Clint Eastwood (the movie combines the four trials into one).
Double Jeopardy
The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . "
Scope of the Double Jeopardy Rule
Not every sanction qualifies under the Double Jeopardy rule. Typically, only sanctions which can be considered as "punishment" would qualify under the rule.
Incorporation
As with all Amendments to the U.S. Constitution, the Double Jeopardy Clause originally applied only to the federal government. However, through the incorporation doctrine, the Supreme Court has incorporated certain amendments and clauses against the states. In Benton v. Maryland, 395 U.S. 784 (1969), the Supreme Court incorporated the Double Jeopardy Clause against the states.
Civil Sanctions
In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the Supreme Court held that the prohibition on double jeopardy extends to civil sanctions which are applied in a manner that is punitive in nature.
In United States v. Halper, 490 U.S. 435 (1989), a civil sanction made under the False Claims Act qualifies as punishment if the sanction is overwhelmingly disproportionate in compensating the government for its loss, and if the disproportionate award can be explained only as a deterrent or as having a retributive purpose.
In One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972), the Supreme Court held, "Congress may impose both a criminal and a civil sanction in respect to the same act or omission, for the Double Jeopardy Clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense."
Charged as a Juvenile for a Crime
In Breed v. Jones, 421 U.S. 519 (1975), the Supreme Court found that double jeopardy applies to an individual who is tried as a juvenile and is then later tried as an adult. This is because juvenile courts have the option to try a minor as an adult. If that court tries the individual as a juvenile, then another trial court may not try that same individual as an adult for the same crime, as doing so would violate the double jeopardy rule.
Civil Asset Forfeiture
In United States v. Ursery, 518 US 267 (1996), the Supreme Court held that civil property forfeitures did not constitute a "punishment" for purposes of the double jeopardy clause. The civil property forfeiture is a remedial civil sanction, and not a punitive criminal "punishment."
The Prohibition Against Double Jeopardy
At its essence, the Double Jeopardy Clause stops the government from prosecuting or punishing someone multiple times for the same incident.
The Fifth Amendment to the U.S. Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” It’s a relatively straightforward concept: The government can’t prosecute someone more than once for the same crime. In practice, though, the double jeopardy prohibition can get complicated.
Double Jeopardy Basics
“Jeopardy” in the legal sense describes the risk brought by criminal prosecution. With notions of fairness and finality in mind, the Framers of the Constitution included the Double Jeopardy Clause to prevent the government from trying or punishing a defendant more than once.
Specifically, double jeopardy protects against:
· a prosecution for the same offense after an acquittal
· a prosecution for the same offense after a conviction, and
· more than one punishment for the same offense.
A defendant facing any of these scenarios can hold up the Double Jeopardy Clause as a shield.
There are clear instances when this shield is available, such as when a jury has acquitted a defendant and the state brings the same charges a second time. (If the prosecution discovered new evidence of the defendant’s guilt after the initial trial, too bad.) Double jeopardy also bars punishment in certain prototypical scenarios—for example, when a judge tries to resentence someone who has already served the punishment for the crime in question.
But there’s often not an obvious answer as to whether the Double Jeopardy Clause applies. Certain principles guide courts in making the determination.
Criminal Cases Only
Double jeopardy applies to criminal cases only, not civil or administrative proceedings. That means, for example, that a defendant convicted of a crime isn’t immune from a civil lawsuit for damages from the victim of the crime. It also means that the DMV can suspend and revoke drivers' licenses for the same actions that lead to criminal convictions. (An example is drunk driving, which a court and the DMV can punish separately.)
Same Offense vs. Multiple Offenses
Double jeopardy prohibits different prosecutions for the same offense. This rule can come into play when the government brings a charge against someone for an incident, then prosecutes that person again for the same incident, only with a different charge. In that kind of situation, if each charge doesn’t require that the prosecution prove at least one additional fact that the other doesn’t, then the charges constitute the same offense under double jeopardy law. Here’s an example showing how that rule works:
A man was convicted of joyriding, the elements of which were taking or operating a vehicle without the owner’s consent. Later, the government charged him with auto theft, which consisted of joyriding while intending to permanently deprive the owner of the vehicle. To prove joyriding, a prosecutor wouldn’t have had to prove anything more than what’s required to prove auto theft. (Joyriding was a “lesser included” offense of auto theft.) Joyriding and auto theft therefore represented the same offense, and the auto theft prosecution violated the double jeopardy principle. (Brown v. Ohio, 432 U.S. 161 (1977).)
When Jeopardy Attaches
The government must place a defendant “in jeopardy” for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn’t cause jeopardy to “attach”—the proceedings must get to a further stage. Indeed, in many cases, the prosecution can drop charges through dismissal or nolle prosequi, and then later refile them.
Generally, jeopardy attaches when the court swears in the jury. In a trial before a judge, jeopardy normally attaches after the first witness takes the oath and begins to testify.
But the empaneling of a jury—selecting jurors and swearing them in—doesn’t actually mean that, whatever happens, the defendant can’t be retried. Of course, if the jury acquits or convicts the defendant, the government normally can’t re-prosecute. But if there was a conviction and an appellate court overturns the judgment, the prosecution might be able to retry the defendant. (Retrial sometimes isn’t allowed, such as when an appeals court decides that the evidence was insufficient to convict the defendant.)
Criminal trials often end in something other than acquittal or conviction. There might be a mistrial because of jury misconduct, for example, or the jury might “hang,” meaning that its members can’t agree on a verdict. In these kinds of scenarios, even though a jury has already been sworn in and jeopardy has thereby attached, retrial is usually allowed. There are exceptions that can prevent retrial—for instance, severe misconduct by a prosecutor intended to create a mistrial. But, in lots of cases, the swearing in of the jury isn’t the actual point of no return.
When Jeopardy Terminates
The attachment of jeopardy doesn’t necessarily mean the government can’t re-prosecute the defendant; jeopardy must also terminate. In other words, the case must in some sense conclude. The classic example is a jury reaching a verdict of either guilty or not guilty. Jeopardy also terminates when a judge finds the evidence insufficient to convict the defendant and enters a judgment of acquittal rather than letting the case go to the jury.
But just because a case ends doesn’t mean that retrial is barred. Again, a hung jury often allows for a retrial. Similarly, if the defense consents to a mistrial, perhaps because of juror misconduct, the prosecution can usually re-prosecute the defendant. On the other hand, if a judge declares a mistrial over the defense’s objection, the prosecution typically must show a critical need in order to retry the defendant. But that isn’t as tough as it might seem. For example, retrial might well be allowed when, despite the defense’s protest, a judge declares a mistrial because a juror stopped coming to court. (United States v. Wells, 790 F.2d 73 (10th Cir. 1986).)
Same or Different Sovereign?
The double jeopardy guarantee protects only against double prosecution or double punishment by the same “sovereign,” or government. Even if the exact same conduct is at issue, a state prosecuting someone doesn’t prevent the federal government from doing the same, and vice versa.
The federal prosecution of the officers who beat Rodney King illustrates the "separate sovereigns" principle. The State of California prosecuted the videotaped officers but failed to obtain any convictions. The 1992 Los Angeles Riots ensued. The federal government then prosecuted the officers for the same beating, alleging a violation of King’s civil rights. The federal convictions were valid because separate sovereigns had tried the officers.
In the 2019 case Gamble v. United States, the U.S. Supreme Court reaffirmed the separate sovereigns doctrine. (139 S. Ct. 1960 (2019).) The defendant in that case had pleaded guilty in state court to the crime of possessing a firearm as a felon. The federal government also charged the man for the incident in question, but under an equivalent federal law. The Supreme Court noted that sovereigns have their own offenses, meaning that in this kind of case the defendant really isn't being prosecuted twice for the same crime. Accordingly, it decided that the second prosecution didn't violate the double jeopardy principle.
Multiple Punishments
Prosecutors often file multiple charges against defendants for the same set of facts. For example, a prosecutor might charge someone with both assault and assault with a firearm for pointing a weapon at someone else. In that situation, if a jury were to convict the defendant of both offenses, double jeopardy might well block the judge from handing down a separate sentence for each crime.
Legal Complexity
Double jeopardy, like so many criminal law concepts, is intricate. And the legal rules throughout the country, while often similar, aren’t always exactly the same. States, for instance, can have their own double jeopardy protections that supplement the Fifth Amendment. Also, some state legislatures and courts might take different approaches than others. If you want to know how or whether the double jeopardy principle applies to a situation you face, make sure to consult an experienced criminal defense attorney.
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