Criminal Procedure: Double Jeopardy

As a start, double jeopardy, as it's stated in the Fifth Amendment of the Constitution, simply prevents a person from being retried for the same offense once jeopardy has attached. In determining whether double jeopardy is an issue, therefore, an initial consideration is whether jeopardy has attached. Jeopardy attaches in a bench trial when the first witness is sworn. In a jury trial, jeopardy attaches at the empaneling and swearing of the jury.

Even if jeopardy has attached, however, there are exceptions as to when double jeopardy will not bar re-trial, and those exceptions are often tested on the MBE. First, a state can re-try a defendant whose first trial ends in a hung jury. In addition, if the first trial ends due to manifest necessity, and termination of that trial occurred on any ground not constituting acquittal on the merits, the defendant can be re-tried without double jeopardy precluding that opportunity.

Further, if defendant is found guilty at trial, appeals the conviction, and wins the appeal, the state can retry the defendant (unless the ground for reversal on appeal was insufficient evidence to support the original guilty verdict).

If you've determined that jeopardy has attached, and that none of the above exceptions apply, another consideration is whether the state is attempting to re-try the defendant on the same offense as defendant had previously been tried. Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require. Stated differently, if each crime requires proof of an additional element that the other does not require, then those crimes do not constitute the same offense for the purposes of excluding re-trial based on double jeopardy.

A few final points: Double Jeopardy prohibits repetitive criminal trials. It does not prevent the state from bringing a civil action against a defendant even if the defendant has already been tried, and acquitted, in a criminal trial, for the conduct out of which the civil action arises. The same would hold true if the civil trial were first. Finally, note that separate sovereigns can try a defendant for the same offense. Accordingly, a person may be tried for the same conduct by both the state and federal government, or by two separate states.