What is Double Jeopardy?

Many Americans may be familiar with the concept of double jeopardy as a plot device in movies and television shows, but it’s important to have an understanding of how this legal concept works in the real world. “Double jeopardy” refers to an individual facing criminal prosecution for the same charges twice. There are some exceptions, but an individual who has already faced prosecution for a crime cannot be prosecuted a second time for the same charge.

Double jeopardy protection exists in the Fifth Amendment of the U.S. Constitution, which states, “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” Defendants can usually expect the same protection at the state level, but if there is no express law against double jeopardy, the doctrine of incorporation applies the U.S. Bill of Rights to the state and local levels.


The U.S. Constitution exists primarily to protect American citizens from tyranny and the misapplication of federal powers. American citizens have several rights that law enforcement officials and the judicial system must respect. Double jeopardy laws exist as another protective measure for American citizens. They accomplish this in several ways, including:

  • Limiting prosecutorial discretion over the charging process.
  • Preserving the integrity and finality of court rulings. If the government could ignore rulings it deems unfavorable, it would encourage corrupt practices and abuses of the judicial system.
  • Protecting individuals from the emotional, societal, and financial harm of consecutive identical prosecutions.
  • Preventing the government from abusing its resources and influence to erode the legal funds and other resources of innocent people with erroneous convictions.
  • Eliminating the possibility of judges issuing cumulative punishments that may not be expressly prohibited by the law.


The “life and limb” verbiage of the double jeopardy section of the Fifth Amendment may seem to indicate this law only pertains to capital crimes, but every defendant has the same protection under the double jeopardy law. This includes felonies, misdemeanors, and juvenile delinquency adjudications.

It’s important to remember that double jeopardy begins or “attaches” to a defendant at certain times. There are also some cases that cause double jeopardy protection to end. For example, if the government indicts an individual for a crime and then dismisses the indictment before double jeopardy protection attaches, then the individual may face indictment for the same charge later. In cases tried by a judge, double jeopardy protection attaches to the defendant once the first witness is sworn in under oath. In cases tried by jury, the double jeopardy protection attaches to the defendant once the jury has been sworn in. If a defendant enters a plea bargain with the prosecution, the double jeopardy protection attaches once the court accepts the plea agreement.

Double jeopardy protection ends after an acquittal verdict, after a trial court’s dismissal, after a mistrial, or on appeal following a conviction. Defendants should also remember that the definition of “the same crime” may vary depending on the circumstances of the situation. For example, one case may involve two criminal charges against the defendant. If the trial leads to conviction for one charge but not the other, the other wouldn’t have double jeopardy protection even though it was part of the same case.

Ultimately, double jeopardy laws exist to protect Americans’ rights under the Fifth Amendment. Anyone who has faced criminal charges in the past may have questions about whether or not past convictions could come back to haunt them. It’s important to know your own legal status and what problems past legal troubles could pose in the future, so speak with a reliable attorney about your double jeopardy concerns for more information.