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Double Jeopardy Clause

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What Is the Double Jeopardy Clause?

The Double Jeopardy clause is a provision in the U.S. Constitution found in the 5th Amendment. Basically, it prohibits a person from being tried twice for the same offense. The text of the clause reads, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Thus, for instance, if a person is tried for a theft offense, they can’t be tried a second time for that same offense. However, they can be tried for a subsequent theft offense without violating the double jeopardy clause.

When Does the Double Jeopardy Clause Apply?

The double jeopardy clause applies to prosecution for the same offense after:

  • An acquittal
  • A conviction
  • Certain mistrials
  • Multiple punishments for the same indictments

So for instance, if a person faces criminal charges and then is acquitted, they can’t be re-tried for that same set of facts. If they are re-tried, and it is found that a violation of double jeopardy has occurred, the second case will likely be thrown out and not applied to the defendant in question.

When Does Jeopardy "Attach"?

The double jeopardy clause exists to prevent a defendant’s rights from coming into "jeopardy." Jeopardy attaches when the defendant’s life or liberties are placed in a position of compromise. This formally occurs when:

  • The jury becomes empaneled (for jury trials)
  • The first witness gets sworn in (for bench trials)
  • Unconditional acceptance of a plea

Thus, a criminal defendant should not be experience any of these situations for the same offense twice.

Do I Need a Lawyer for Help with Double Jeopardy Issues?

Double jeopardy is a distinct principle that can affect the outcome of a criminal trial. If you have any questions regarding such principles, you may need to hire a lawyer for advice or representation. A qualified lawyer can provide you with advice for a criminal case, and can also help ensure that your rights are protected. If you believe that your criminal rights have been violated, your attorney can help you pursue a course of action.

Photo of page author Jose Rivera

, LegalMatch Legal Writer

Last Modified: 01-20-2014 12:21 PM PST

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