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Can You Be Charged Twice for the Same Federal Crime? Understanding Double Jeopardy

By Spodek Law Group | October 19, 2023
(Last Updated On: October 20, 2023)

Last Updated on: 20th October 2023, 09:32 am


Can You Be Charged Twice for the Same Federal Crime? Understanding Double Jeopardy

The Fifth Amendment to the US Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This clause, known as the Double Jeopardy Clause, prohibits anyone from being prosecuted twice for substantially the same crime. But what exactly does this mean and how far do the protections go? Can you be charged by both state and federal authorities for the same crime? Can a case be retried if the first trial ends in a mistrial or hung jury? This article will examine the scope and limitations of double jeopardy to help you understand when and how you are protected from being tried twice for the same offense.

What is Double Jeopardy?

The basic premise behind double jeopardy is that the government should not be able to repeatedly prosecute someone for the same criminal act in hopes of getting a conviction. The clause protects against:

  • Being prosecuted again after an acquittal
  • Being prosecuted again after a conviction
  • Being punished multiple times for the same offense

This prevents the government from harassing citizens by subjecting them to multiple trials and convictions for the same crime. As the Supreme Court has stated, “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.”[1]

However, there are some limitations on double jeopardy protections. Not every subsequent prosecution is barred – there are certain circumstances where you can be tried twice for essentially the same crime.

When Double Jeopardy Applies

For double jeopardy to apply, a few key factors must be present:

The proceeding must be criminal in nature

Double jeopardy only applies to criminal prosecutions, not civil cases. For example, if you are acquitted of assault in a criminal trial, the victim could still sue you for damages in a civil case.[2]

Jeopardy must have attached in the first proceeding

You do not have double jeopardy protections until jeopardy has attached in the initial criminal prosecution. In a jury trial, this occurs when the jury is sworn in. In a bench trial, it is when the first witness is sworn in.[3]

So if a trial ends before a jury is empaneled or the first witness testifies, double jeopardy does not prevent a retrial.

The offense charged must be the same

To trigger double jeopardy protections, the second prosecution must be for the exact same offense, not just a similar or related crime. For example, if you are charged with robbing a bank on January 1st, an acquittal would not prevent you from being charged with robbing the same bank on January 2nd. Those are two distinct offenses.

The proceeding must have terminated

There must have been some final resolution to the initial prosecution for double jeopardy to apply. If a trial ends in a mistrial, hung jury, or the conviction is overturned on appeal, generally the case can be retried without violating double jeopardy.[4]

The subsequent prosecution must be by the same sovereign

Prosecution by separate sovereign governments does not trigger double jeopardy protections. This means that federal and state governments can both prosecute you for the same crime without violating double jeopardy.

For example, if you are acquitted of a federal drug offense, a state could still charge you under state drug laws for the same conduct without violating double jeopardy.[5] This is because federal and state governments are considered separate sovereigns under the dual sovereignty doctrine.

Exceptions Where Double Jeopardy Does Not Apply

There are some key exceptions where double jeopardy does not prevent a subsequent prosecution, even for the same offense:


If the first trial ends in a mistrial, double jeopardy usually does not prevent a retrial. However, if the mistrial was caused intentionally by prosecutorial misconduct, a retrial may be barred.[6]

Hung juries

If the jury cannot reach a unanimous verdict, ending the trial in a hung jury, the case can generally be retried without violating double jeopardy.

Overturned convictions

If a conviction is reversed on appeal for trial errors, double jeopardy allows a retrial after appeal. This prevents people from going free due to legal technicalities.

Violations of the “Petite Policy”

The Justice Department has an internal policy against federal prosecution after a state prosecution except where necessary to advance federal interests. But violating this policy does not violate double jeopardy protections.

Civil Rights Violations

The federal government can prosecute civil rights violations, even after a state acquittal, without violating double jeopardy.

Separate sovereigns

As mentioned earlier, prosecution by separate state and federal authorities does not trigger double jeopardy protections.[5]

The Bottom Line

In summary, the Double Jeopardy Clause provides important protections against being tried twice for the same offense. But there are limitations – it only applies to criminal cases, by the same sovereign, for the exact same crime, after the first trial has concluded. Subsequent prosecutions are still permitted in many circumstances, so you should consult an attorney if you are concerned about double jeopardy issues. The key is understanding when and how you can be charged twice for essentially the same crime.


[1] Green v. United States, 355 U.S. 184 (1957) [2] https://www.law.cornell.edu/wex/double_jeopardy [3] https://www.justice.gov/jm/criminal-resource-manual-648-attachment-and-termination-jeopardy [4] https://www.law.cornell.edu/constitution-conan/amendment-5/double-jeopardy#fnb740ref [5] https://www.law.cornell.edu/wex/double_jeopardy [6] https://www.law.cornell.edu/constitution-conan/amendment-5/double-jeopardy#fnb740ref

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