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Double Jeopardy Clause (Fifth Amendment)
Practical Law Glossary Item w-024-4565 (Approx. 3 pages)
Glossary
Double Jeopardy Clause (Fifth Amendment)
A right set out in the Fifth Amendment to the US Constitution that prohibits prosecuting or punishing a criminal defendant more than once for the same offense.
The Double Jeopardy Clause is an affirmative defense that a criminal defendant may assert if the government:
- Prosecutes the defendant for the same offense after:
- their acquittal;
- their conviction; or
- in certain limited situations, after the court declares a mistrial.
- Seeks multiple punishments for the same offense.
Courts use the Blockburger Test to determine whether multiple charged offenses are the same.
A defendant cannot assert the Double Jeopardy Clause to prevent:
- A retrial if a court vacated or reversed the defendant's conviction.
- Different sovereigns from prosecuting the defendant for the same offense arising from a single course of conduct. State, federal, and foreign authorities may each separately prosecute the defendant.
Jeopardy attaches when:
- The court swears in:
- the jury; or
- the first witness in a bench trial.
- The court accepts the defendant's guilty plea.
The Double Jeopardy Clause applies to the states through the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784, 787 (1969)).