The Double Jeopardy Clause of the 5th Amendment guarantee’s that a person will not be tried twice for the same crime in the same jurisdiction. Double jeopardy occurs if someone is charged with a crime and found innocent, and then charged with the same crime a second time.

Double jeopardy protects against three different types of abuses:

  1. A second prosecution for the same offense after conviction
  2. A second prosecution for the same offense after acquittal
  3. Multiple punishments for the same offense

Exceptions to the Double Jeopardy Clause

An individual can be tried twice based on the same facts as long as the elements of each crime are different.

Different jurisdictions can charge the same individual with the same crime based on the same facts without violating double jeopardy. For example, the federal and state governments can try the same defendant for the same conduct as long as some aspect of the defendant’s conduct violated both a federal and a state law.

Double jeopardy prohibits only more than one criminal prosecution based on the same facts and same crime. Thus, even after a defendant is acquitted criminally, a civil suit may still be brought.


If a defendant is tried for a burglary that allegedly occurred at 1234 Green Street on January 1, 2000 and is acquitted, the defendant cannot be tried a second time for the burglary of that same house on the same date.

If the defendant is tried and acquitted for allegedly selling cocaine at 1234 Green Street on January 1, 2000 to Bill, that same defendant can still be tried for allegedly selling cocaine at 1234 Green Street on January 1, 2000 to John. Each time the cocaine is sold is a separate act and a separate offense, and each can be tried without violating the double jeopardy clause.

When Does Double Jeopardy Apply?

Double jeopardy only applies to criminal cases only, not in civil proceedings. The defendant can only invoke the Fifth Amendment Double Jeopardy clause when the government has placed the defendant “in jeopardy”. The Double jeopardy will attach when the court swears in the jury.

Double jeopardy will apply if the defendant has been acquitted on the charge or convicted, then the government cannot retry the defendant on the same crime or a lesser crime that was merged within the crime. For example, if the defendant was acquitted on robbery charges, the prosecution cannot later try the defendant for larceny regarding the same incident since larceny is a lesser offense of robbery.

When Does Double Jeopardy Not Apply?

Double jeopardy does not apply in the following situations:

  • Mistrial: Double jeopardy does not always mean government cannot prosecute the defendant if the case was terminated. If the case was terminated because of a “hung jury” or a “mistrial” the defendant can later be retried on the same crime because his/her case did not end on the “merits”, but rather a technicality.
  • Sovereign: Double jeopardy also does not prevent another sovereign to prosecute the defendant on same crime. For example, just because the state cannot prosecute defendant doesn’t mean the federal government cannot.
  • Multiple Offenses: Double jeopardy only protects against prosecution for the same offense, but does not prevent the government from prosecuting the defendant on the same crime with multiple charges of the offense.

Prosecution Dropped Charges

In cases where the defendant has been charged, but the prosecution decides to drop the charges before it has gone to official proceedings, the prosecution can re-file the case on the same charges because the “jeopardy” has not been attached.

Seeking Legal Help

If you believe that you are being prosecuted twice for the same crime, you should speak to a criminal defense lawyer immediately to learn more about your rights, your defenses, and the complicated legal system.