What does double jeopardy mean?
Double jeopardy means the government gets one fair shot at convicting someone for a crime. Once that chance is used up, it cannot try the same person again for the same offense. The Fifth Amendment’s Double Jeopardy Clause protects against three things: a second prosecution after an acquittal, a second prosecution after a conviction, and multiple punishments for the same offense.
- Source
- Fifth Amendment to the U.S. Constitution
- Applies to states
- Yes, since Benton v. Maryland (1969), through the 14th Amendment
- When it attaches
- Jury trial: when the jury is sworn. Bench trial: when the first witness is sworn
- Biggest exception
- Dual sovereignty (state and federal prosecutions)
When does jeopardy attach?
Protection begins only when jeopardy "attaches." In a jury trial that happens when the jury is empaneled and sworn; in a bench trial, when the first witness is sworn. Charges dismissed before that point can generally be refiled. If a judge declares a mistrial, the prosecution can usually retry the case when the defendant agreed to the mistrial or there was a "manifest necessity," such as a hung jury.
What counts as the "same offense"?
Courts use the Blockburger test from Blockburger v. United States (1932): two offenses are different if each requires proof of a fact that the other does not. For example, a lesser included offense such as joyriding is the "same offense" as auto theft, so a conviction for one bars prosecution for the other.
Key exceptions
- Dual sovereignty: State and federal governments are separate sovereigns, so each may prosecute the same conduct. The Supreme Court reaffirmed this in Gamble v. United States (2019).
- Civil cases: Being acquitted of a crime does not prevent a civil lawsuit over the same act, because civil liability is not "jeopardy of life or limb."
- Successful appeal by the defendant: If a defendant appeals a conviction and wins a new trial, the retrial is allowed (except where the reversal was for insufficient evidence).
- Civil penalties: Administrative sanctions such as license suspension are generally not punishment for double jeopardy purposes.
The prosecution generally cannot appeal a jury acquittal, even if new evidence appears later. That one-way rule is what makes the U.S. protection stronger than in many other countries.
How other countries apply it
| Country | Legal basis | Can the prosecution appeal an acquittal? |
|---|---|---|
| United States | Fifth Amendment | Generally no (jury acquittal is final) |
| South Korea | Constitution art. 13(1); Criminal Procedure Act art. 326(1) | Yes, until the judgment becomes final |
| Japan | Constitution art. 39; Code of Criminal Procedure art. 337(1) | Yes, until the judgment becomes final |
In South Korea and Japan, the protection applies once a judgment becomes final; if the same case is charged again, the court must end it with a judgment of dismissal (myeonso in Korean, menso in Japanese) without ruling on guilt. Article 14(7) of the International Covenant on Civil and Political Rights sets the same principle as an international human-rights standard.
Related protections
Double jeopardy works together with due process, the presumption of innocence and the civil-law doctrine of res judicata, which stops parties from relitigating a decided claim. For the stages of a criminal case, see criminal procedure.
Frequently asked questions
- Can you be tried again if new evidence appears after an acquittal?
- Not in the U.S. for the same offense in the same jurisdiction. An acquittal is final, even if new evidence surfaces later.
- Can a state and the federal government both prosecute me?
- Yes. Under the dual sovereignty doctrine, reaffirmed in Gamble v. United States (2019), separate sovereigns can each bring charges for the same conduct.
- Does double jeopardy apply to civil lawsuits?
- No. You can be acquitted in criminal court and still be sued for damages in civil court over the same incident.
References
- 대한민국헌법 제13조 제1항, 형사소송법 제326조 제1호 (국가법령정보센터 law.go.kr)
- U.S. Const. amend. V; Congress.gov, Constitution Annotated, "Overview of Double Jeopardy Clause" (constitution.congress.gov)
- Blockburger v. United States, 284 U.S. 299 (1932).
- Benton v. Maryland, 395 U.S. 784 (1969).
- Gamble v. United States, 587 U.S. 678 (2019).
- 日本国憲法第39条、刑事訴訟法第337条第1号（e-Gov法令検索 laws.e-gov.go.jp）
- United Nations, International Covenant on Civil and Political Rights (1966), art. 14(7).