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Double Jeopardy Law

Double Jeopardy Law

You may have heard about the double jeopardy law by watching crime and justice shows like Law & Order, but perhaps you may not know how it works in the real world. So, in this article, we’re going to discuss the double jeopardy law and common misconceptions about it.

What is Double Jeopardy Law & How Does it Work?

Double jeopardy is a legal right defined in the fifth amendment of the United States Constitution that prohibits trying a defendant twice for the same offense. Let’s take a look at this scenario. Suppose person A is accused of murdering his neighbor, the prosecutor takes person A to trial, and during this trial, the jury returns a verdict of not guilty. The prosecutor now becomes very angry and says this was a lousy verdict, and the jury got it all wrong, then the prosecutor decides to arrest person A again and bring him to trial. There holds the power of the double jeopardy law! Person A can never be prosecuted by the state again for that charge. 

Double Jeopardy Laws in the United States

The double jeopardy law in the United States is one of the oldest legal concepts that has been adopted into our modern-day legal system. The law states “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” However, as with many other laws, some exceptions apply to double jeopardy, and certain legal situations may allow for a trial of a previously tried crime without violating double jeopardy. 

Let’s just say, for example, while the law prevents a defendant from being tried twice for the same crime. Still, it allows some criminal offenses to be prosecuted separately by federal and state sovereignties, mainly because federal and state judiciaries are considered separate entities. As a result, federal and state officials cannot work together on each other’s cases. Furthermore, in a situation where a mistrial is declared, the double jeopardy clause will not protect a defendant from prosecution or a new trial. 

Double Jeopardy Law Examples

There are various examples in history where the double jeopardy law came into effect. Let’s take a look at some of these cases. 

Ashe v. Swenson

Six men, including Donald Knight and Ray Roberts, played poker when mask robbers took their money and other personal properties. As a result, the police arrested four men for this crime, including Bob Ashe, and each man was charged in state court with six counts of robbery, one count per poker player. Bob Ashe’s first trial was limited to the charge that he robbed Donald Knight, and the jury acquitted Ashe on the basis that the prosecution had offered insufficient evidence that Bob Ashe had committed the crime. However, the state also prosecuted Bob Ashe for robbing Ray Roberts, and Bob Ashe objected that his second trial was sealed by the fifth amendment’s double jeopardy clause. 

Blockburger v. United States

Harry Blockburger sold considerable quantities of morphine hydrochloride on several occasions to Ella Rush. Based on these sales of morphine Harry Blockburger was charged with five counts of violating the Harrison Narcotics Act. The jury then ruled against Harry Blockburger on the second, third and fifth counts. The jury court imposed a fine on each count and sentenced Harry Blockburger to five years imprisonment with the terms to run consecutively. The seventh circuit declared Harry Blockburger appealed to the United States supreme court and arguing that the imposition of separate punishments for the third and fifth counts violated the double jeopardy clause. 

Green v. United States

In this case, Green was put on trial, and the jury was told that they could convict him of either 1st or 2nd-degree murder. They then found him guilty of 2nd-degree murder, and later, he appealed the case and won. He later went back to trial and was again tried for 1st and 2nd-degree murder, and this time he was found guilty of 1st-degree murder. So the court ruled that this violated his double jeopardy because he had appealed the 2nd-degree murder charge, not the first.

Fong Foo v. United States

This case occurred when a district judge told the jury to give the defendant an acquittal. After all, the prosecution had lousy evidence, and the judge made a poor decision because the prosecution wasn’t done presenting its witnesses. However, the supreme court ruled that retrying the defendant would violate the double jeopardy clause, regardless of the judicial error. 

Common Misconceptions About Double Jeopardy Laws 

There are some common misconceptions about the double jeopardy clause. Let’s take a look at two of these misconceptions.

  • Double jeopardy applies not only in criminal proceedings but also in civil and administrative proceedings. 
  • The government can prosecute someone twice for the same crime.

Some people believe that guilty people get out of punishment because of the double jeopardy law, and some may not even like this law. However, despite some of these criticisms, the double jeopardy law does more good than harm. Nevertheless, you should watch for these common mistakes because if the government prosecutes someone multiple times, it can cause the defendant time, money, and public embarrassment. 

Not only that, but someone who had been found innocent would leave in fear because of the concern of being brought back to trial. Double jeopardy applies only in criminal proceedings and not civil or administrative proceedings, mainly because those usually recur or happen in intervals.


This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

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