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How does Double Jeopardy work?

Updated: Nov 30, 2022

Let me start off by thanking my brother for reminding me of what it felt like to first learn about Double Jeopardy in law school. I had forgotten about the feeling of complete shock and disbelief when I learned that Double Jeopardy is not what I thought it was. I have lost count of the number of times I have had a client use the phrase "Double Jeopardy" without really knowing what it means. What I hope to provide hear is some clarity about the meaning of this often-cited and rarely-understood legal concept.

Let's start off with the text of the Fifth Amendment of the United States Constitution which gives everyone in the US protection against double jeopardy. The Double Jeopardy Clause of the Fifth Amendment provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." In case you are wondering, that is not a typo. "Offense" in the amendment is actually spelled with a c, I checked.

As is often the case with constitutional law, that short sentence is carrying a heavy load. The courts have interpreted the protection against Double Jeopardy as barring the government from (1) prosecuting someone a second time for the same offense after they have already been tried and acquitted, (2) prosecuting someone a second time for the same offense after they have already been convicted, (3) from imposing multiple punishments on someone for the same offense in successive proceedings, and (4) in some circumstances from prosecuting a person a second time for the same offense after a judge has terminated the first trial before the fact-finder reached a verdict in the case.

This seems fairly straight forward except there are two essential questions that are often taken for granted: who is "the government" and what is "the same offense." It is in these questions that the real surprising parts of the concept of Double Jeopardy lie.

When the United States was founded and the framers of the Consitution were working out how the government of this new nation was going to conduct itself, there were two main factions: those who were in favor of a strong federal government and those who were against it. The tension between these two factions led to a strange system of dual sovereignty where the states are able to govern themselves while the federal government governs separately. The federal government has superiority over the state governments, but the Constitution makes clear in the Tenth Amendment that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Put plainly, the federal government is meant to be a government of limited powers, and the powers not specifically given to the federal government remain with the states. The federal government is a sovereign entity as are the individual states' governments. For some of you, this fact might be fairly surprising. Just wait.

So, when the Fifth Amendment says "the government," is it referring to the federal government or to the state governments? This too is not as straightforward of a question as it might seem. At the time of the framing of the Constitution, the framers understood that they were setting up limitations on a federal government. They were listing things the federal government could and could not do with regard to its citizenry. In fact, it was not until the ratification of the Fourteenth Amendment that it was made clear that several aspects of the US Constitution applied to the states as well. So when the Fifth Amendment was passed, the understanding was that the federal government could not try a person for the same offense more than once. The courts over the years have clarified that the state governments may not do so either.

However, the federal government and the state government are not the same "government." Therefore, the double jeopardy bar on two or more prosecutions for the same offense does not prohibit the federal and state government from prosecuting a person for the same offense. This is the thing that, when I learned it, made me realize how little we are taught about how the law works unless we go to law school. It is true: a person can be tried and acquitted for a crime in state court and then, not only have the federal government prosecute them for the exact same crime in federal court, but be convicted in federal court following the state court acquittal! Ultimately, "the system" prioritizes allowing the two sovereigns (the state and federal governments) to prosecute someone over not forcing a person to have to fight for their "life or limb" multiple times. Most people instinctively view this as unfair, and yet that is our system.

The second fundamental question in Double Jeopardy analysis is what constitutes the "same offense." In ye olden days, or as lawyers put it, under common law, this question was much easier to answer. Under common law, one instance of criminal behavior only could lead to one prosecution, regardless of how many wrongful acts the person might have committed in that instance. However, as time passed and more offenses were codified that were related or overlapping, the government started prosecuting people for several different crimes stemming from the same circumstances more and more. For example, if a person previously convicted of a felony whose gun rights have not been restored were to steal a car at gunpoint, they could theoretically be prosecuted for armed robbery, aggravated assault, theft of means of transportation, disorderly conduct, possession of a deadly weapon by a prohibited possessor, kidnapping, etc. This trend gave prosecutors a lot more discretion in the charging process until the Supreme Court finally weighed in in Blockburger v. United States.

In Blockburger, the Supreme Court laid out a test, which is now called the "Blockburger test," for when the government can prosecute someone for multiple offenses stemming from the same conduct. The Supreme Court explained that the government may prosecute an individual for multiple offenses stemming from the same conduct only when each offense requires proof of a fact the other does not. The test involves looking at the statutory elements of the offenses in question and comparing them without any regard for what the actual evidence is. It is the burden of the prosecution to establish that each offense has at least one element the other does not. If all the elements of one offense are completely contained in the other offense, then the Blockburger test deems them the same offense, and punishment is allowed only for one.

So, that is in a nutshell how Double Jeopardy actually works. If you have reason to think that the government is violating your right against Double Jeopardy, give me a call!

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