---
title: Double Jeopardy Protections
description: An overview of the legal principles and standards governing the prohibition against double jeopardy in criminal proceedings.
keywords: [double jeopardy, criminal procedure, Fifth Amendment, collateral estoppel, successive prosecutions]
category: law
---

## Introduction to Double Jeopardy Protections

The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."[^1] This protection against double jeopardy is a fundamental tenet of the American criminal justice system, rooted in the common law tradition and designed to safeguard individuals from the harassment and oppression that could result from multiple prosecutions for the same underlying conduct.[^2] The double jeopardy clause applies to the states through the Fourteenth Amendment and serves as an essential bulwark against governmental overreach and abuse of prosecutorial power.[^3]

## The Scope of Double Jeopardy Protections

The double jeopardy clause prohibits three distinct types of successive prosecutions: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.[^4] This protection extends not only to the offense charged, but also to any lesser-included offenses that could have been charged in the initial proceeding.[^5] Additionally, the doctrine of collateral estoppel, which is encompassed within the double jeopardy clause, bars the relitigation of factual issues that were necessarily decided in the defendant's favor during a prior trial.[^6]

## Exceptions to Double Jeopardy Protections

Despite the broad protections afforded by the double jeopardy clause, there are several well-established exceptions that allow for successive prosecutions in certain circumstances. For example, the "dual sovereignty" doctrine permits a state and the federal government to prosecute an individual for the same underlying conduct without running afoul of double jeopardy, as they are considered separate sovereigns.[^7] Additionally, the government may retry a defendant following a mistrial declared due to a "manifest necessity," such as a deadlocked jury or the unavailability of a key witness.[^8] Finally, the double jeopardy clause does not bar the government from appealing an acquittal, as long as the appeal does not require a new trial and the government is only seeking to correct an error of law.[^9]

## The "Same Offense" Requirement

At the heart of double jeopardy analysis is the determination of whether the subsequent prosecution is for the "same offense" as the initial proceeding. The Supreme Court has established the "same elements" test, which provides that two offenses are the "same" for double jeopardy purposes if each requires proof of a fact that the other does not.[^10] This inquiry focuses on the statutory elements of the offenses, rather than the specific facts underlying the charges.[^11] Importantly, the double jeopardy clause does not prohibit successive prosecutions for the "same conduct" if the offenses charged require proof of different elements.[^12]

## Burden of Proof and Remedies

The defendant bears the initial burden of establishing a prima facie case of double jeopardy, which requires showing that the subsequent prosecution is for the "same offense" as the prior proceeding.[^13] Once the defendant has made this threshold showing, the burden shifts to the government to demonstrate that an exception to double jeopardy applies.[^14] If the court finds that the defendant's double jeopardy rights have been violated, the appropriate remedy is to bar the subsequent prosecution or vacate the conviction and sentence.[^15] In certain circumstances, the double jeopardy clause may also require the dismissal of an indictment or the reversal of a conviction on appeal.[^16]

## Conclusion

The prohibition against double jeopardy is a fundamental constitutional protection that safeguards individuals from the harassment and oppression that could result from multiple prosecutions for the same underlying conduct. While the scope of this protection is broad, encompassing both successive prosecutions and multiple punishments for the same offense, the courts have recognized several well-established exceptions. Navigating the nuances of double jeopardy law requires a careful analysis of the specific offenses charged, the applicable legal standards, and the specific facts and circumstances of each case.

[^1]: U.S. Const. amend. V.
[^2]: See, e.g., Benton v. Maryland, 395 U.S. 784, 795-96 (1969); Green v. United States, 355 U.S. 184, 187-88 (1957).
[^3]: Benton, 395 U.S. at 794.
[^4]: North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).
[^5]: Brown v. Ohio, 432 U.S. 161, 168 (1977).
[^6]: Ashe v. Swenson, 397 U.S. 436, 443-44 (1970).
[^7]: United States v. Lanza, 260 U.S. 377, 382 (1922); Abbate v. United States, 359 U.S. 187, 194 (1959).
[^8]: Arizona v. Washington, 434 U.S. 497, 505 (1978); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
[^9]: Sanabria v. United States, 437 U.S. 54, 69 (1978); United States v. Wilson, 420 U.S. 332, 345 (1975).
[^10]: Blockburger v. United States, 284 U.S. 299, 304 (1932).
[^11]: Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).
[^12]: Grady v. Corbin, 495 U.S. 508, 521 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993).
[^13]: United States v. Halper, 490 U.S. 435, 440 (1989).
[^14]: Id.
[^15]: Burks v. United States, 437 U.S. 1, 18 (1978).
[^16]: See, e.g., Ashe, 397 U.S. at 444; Sanabria, 437 U.S. at 69.