What is the Double Jeopardy Clause (Fifth Amendment)?

The Fifth Amendment of the U.S. Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb…” In other words, the government can’t prosecute or punish someone more than once for the same crime. Sounds simple enough, but there are some caveats to be aware of.

Legally speaking, “jeopardy” refers to the risk brought by criminal prosecution. The government must place a person “in jeopardy” for the Fifth Amendment protection to kick in. Generally, this occurs when a jury is sworn in, or after the first witness takes their oath and begins to testify in a trial before a judge.

Double jeopardy applies to criminal cases only. Someone acquitted of a crime can still be subject to a civil suit for monetary damages. Remember the O.J. Simpson case.

If jeopardy has not been terminated—that is, brought to a conclusion with a definitive verdict—a case may be retried. Two examples of this include a mistrial and a hung jury. A jury verdict of acquittal terminates jeopardy, and the decision cannot be overturned.

Every defendant has the right to at least one appeal after a conviction. If the conviction is overturned due to insufficient evidence, it is treated as an acquittal for the defendant, who cannot be prosecuted again. If the reversal is due to a technicality (e.g., unlawful search and seizure), a retrial is permitted.

If a state government tries a case, it does not preclude the federal government from trying the same matter, and vice versa. Double jeopardy does not apply.

If you have questions about Double Jeopardy, contact an experienced New Hampshire criminal law attorney who can help guide you through the process.