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What Is Double Jeopardy?

The Fifth Amendment, part of the US Bill of Rights, addresses due process, double jeopardy, self-incrimination, and eminent domain.
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  • Originally Written By: J. Beam
  • Revised By: Bott
  • Edited By: Bronwyn Harris
  • Image By: Tex Hex
  • Last Modified Date: 26 July 2014
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One common meaning of double jeopardy refers to a legal right defined in the Fifth Amendment of the United States Constitution that prohibits trying a defendant twice for the same offense. The Fifth Amendment is part of the Bill of Rights in the US Constitution, and also states that a defendant cannot be forced to testify in his own criminal proceedings. The double jeopardy clause protects a defendant from three specific violations of rights:

  • After an acquittal: If a defendant receives an acquittal, meaning he is found not guilty, there cannot be a second prosecution brought against the defendant for the same offense.

  • After a conviction: Double jeopardy also protects a defendant who was convicted, or found guilty, against being prosecuted a second time for the same offense.

  • Multiple sentences: The same offense cannot warrant multiple punishments, or sentences, when double jeopardy in in force.

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Exceptions

As with many laws, there are exceptions that apply to this part of the Fifth Amendment, and certain legal situations may allow for retrial of a previously tried crime without violating double jeopardy. For example, while the clause prevents a defendant from being tried twice for the same crime, it does allow for some criminal offenses to be prosecuted separately by federal and state sovereign ties, because federal and state judiciaries are considered separate entities. This right is subjective because federal and state officials cannot work together as proponents of one another's cases. Similarly, in the event that a mistrial is declared, the double jeopardy clause does not protect the defendant from prosecution in a new trial.

Around the World

Double jeopardy rights vary among other countries around the world. In Europe, suspects are protected against multiple trials, but legislation for each European country has the right to enforce the Criminal Justice Act of 2003, which allows for multiple trials against acquitted suspects when new evidence is found. England and Wales have both implemented the act, allowing multiple trials for the same offense with new evidence. Scotland allows a suspect to be tried twice if the offense is murder, rape, serious sex crimes, or culpable homicide. India allows multiple trials only when the suspect was originally found not guilty.

Examples

One well-known example of multiple trials for the same crime is that of Jack McCall, the convicted killer of Wild Bill Hickock. McCall was first tried in 1876 in Deadwood, South Dakota, which at the time was Indian territory and not legally part of the US. He was found not guilty and later fled to Wyoming, where he was caught, sent back to South Dakota, tried again in a legal part of the US, and found guilty. The retrial was allowed because the first trial did not take place on official US territory.

In the case of Harry Aleman vs. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al., 1998, the defendant bribed the judge in order to be found not guilty. The Supreme Court eventually learned about the bribe and ruled for a retrial, which was allowed due to the use of bribery.

In the Media

In addition to the legal right defined in the US Constitution, in 1999, Double Jeopardy was a feature length film starring Tommy Lee Jones and Ashley Judd that explored the very concept of the clause with the same name. Judd’s character was a woman whose husband framed her for his murder. Once she served her sentence, she went looking for him because a friend pointed out that if she really murdered him once she found him, she could not be tried for the crime a second time.

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Discuss this Article

anon171008
Post 6

If a freshman in school is caught with a unopened bottle of wine in their possession, and are suspended from school for two weeks, as a punishment, can they be tried in court and punished again? or does the 5th amendment protect them from being punished two times for for the same thing?

anon43323
Post 5

she got caught selling crack. there were others involved as well. her attorney told her that if she pled guilty to all the counts, including those of the others, that she would get a lighter sentence. all of the others involved have already served out their time, and been released. she has already served 30 months, and because she was also charged with thier counts, she is still in there. is there a legal basis for requesting a sentence reduction based on a. being misled by attorney; b. double jeopardy; c. length of time already served; or d. new crack laws? any information and advice will be welcome and appreciated. thank you

anon40495
Post 4

do you get you money back if the party wins thier case in court?

anon17099
Post 3

if somebody is charged with possession of a whatever the object, can they later be charged with the burglary or theft of that object?

writer1545
Post 2

If a case is dropped nolle prosse, is it double jeopardy if the person is recharged?

stuman
Post 1

if bail is paid and the charged is dropped do you get your money back?

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