MBE Fast Fact: Separate Sovereigns

What exactly is meant by "separate sovereigns" as the term is used in the context of Double Jeopardy questions? The Fifth Amendment to the U.S. Constitution provides, in part, the following:

"No person shall be subject for the same offense to be twice put in jeopardy of life or limb."

In any Double Jeopardy question on the MBE, it's important to first determine whether the defendant is being tried for the same offense twice, and whether the first case was decided on the merits. If both elements are satisfied there is an issue of Double Jeopardy to consider.

But another focus should be to determine whether there are separate sovereigns involved. For example, the Fifth Amendment does not prevent a defendant from being tried in federal court for an offense even if the defendant has been acquitted in state court. Nor does Double Jeopardy prevent a defendant from being tried in state court if the defendant has been acquitted in another state. Similarly, if defendant is tried in a court outside of the federal power (for example, a Tribal Court), this, too, will not prevent a subsequent case in federal court concerning the same offense.

Something to think about when these types of questions pop up.