Double Jeopardy

Summary

The constitutional protection against being tried twice for the same offense after acquittal or conviction.

Overview

The double jeopardy clause of the Fifth Amendment provides that no person shall be subject to the same offense being tried twice. This protection applies to successive prosecutions for the same offense after acquittal, after conviction, and to multiple punishments for the same offense. The clause was incorporated against the states in Benton v. Maryland (1969). The underlying purpose is to prevent governmental oppression through repeated prosecutions.

Same Offense Test

The test for whether two charges constitute the same offense is the Blockburger test: if each statute requires proof of an element the other does not, they are different offenses. Dual sovereignty allows both federal and state prosecutions for the same conduct since they are separate sovereigns. A mistrial generally does not bar retrial unless the prosecution intentionally provoked the mistrial.

Exceptions and Limitations

Civil forfeiture proceedings, even when related to criminal conduct, generally do not constitute punishment for double jeopardy purposes. The clause does not bar retrial after a successful appeal by the defendant, because the defendant’s appeal waives the protection. Different offenses arising from the same transaction may each be prosecuted sequentially unless they constitute the same offense under Blockburger.