MBE Tip: Double Jeopardy

The Double Jeopardy Clause of the 5th Amendment states, in part, that no person shall be put in jeopardy for the same offense twice. Essential, then, is an understanding of what is meant by the same offense, because if two offenses are not the same offense, then double jeopardy does not apply. Offenses are the same offenses unless there is an element in each offense that is not in the other.

Example 1:

Offense 1
Elements: A, B, C

Offense 2

Elements: A, B, C, D

These offenses are the same offenses because, although there is an element in offense 2 that is not in offense 1 (element D), there is no element in offense 1 that is not in offense 2. 

Example 2:

Offense 1

Elements: A, B, C, D

Offense 2

Elements: A, B, C

These offenses are the same offenses because, although there is an element in offense 1 that is not in offense 2 (element D), there is no element in offense 2 that is not in offense 1. 

Example 3:

Offense 1

Elements: A, B, C

Offense 2: 

Elements: B, C, D

These offenses are not the same offenses because there is an element in offense 1 that is not in offense 2 (element A) and there is an element in offense 2 that is not in offense 1 (element D). 

The significance here is that only in examples 1 and 2 should double jeopardy be considered. In example 3, the offenses are not the same, so double jeopardy should not be considered.