Double Jeopardy - United States

United States

The Fifth Amendment to the United States Constitution provides:

or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ."

The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment. Jeopardy "attaches" when the jury is empanelled, the first witness is sworn, or a plea is accepted.

Prosecution after acquittal

The government is not permitted to appeal or try again after the entry of an acquittal, whether a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), or an "implied acquittal" via conviction of a lesser included offence. In addition, the government is barred by collateral estoppel from re-litigating against the same defence a fact necessarily found by the jury in a prior acquittal, even if the jury hung on other counts.

This principle does not prevent the government from appealing a pre-trial motion to dismiss or other non-merits dismissal, or a directed verdict after a jury conviction, nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute. Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, including habeas, or "thirteenth juror" appellate reversals notwithstanding sufficiency on the principle that jeopardy has not "terminated." There may also be an exception for judicial bribery, but not jury bribery.

There have been exceptions to double jeopardy in the past, such as the retrial of officers involved in the 1991 Rodney King beating. This exception stems from the ability of different sovereignties to charge individuals for the same crime. Here, the officers were first acquitted by state court and subsequently charged and tried by federal court, which are different sovereignties. The exception to this exception exists between city and state sovereignties located within the same state. Although cities are different sovereignties than the state they are located within, the two are not permitted to attach jeopardy more than once cumulatively.

Another exception is the perpetrator can be retried by court martial in a military court, if they have been previously acquitted by a civilian court, and are members of the military.

Multiple punishment, including prosecution after conviction

In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless it legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.

The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction. In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was not satisfied, but Grady was overruled in United States v. Dixon (1993).

Prosecution after mistrial

The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith," i.e. goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial. The same standard governs mistrials granted sua sponte.