Double Jeopardy: The Legal Limits of Trying Twice

By Julia Underwood '27

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The legal concept of double jeopardy has a long and complicated history. Legal historians can first trace it back to Roman Law, circa 8th century BCE. (1) Under the principle "ne bis in idem" or "not twice for the same," a person could not be tried twice for the same crime. Much of the Roman legal codes, including "ne bis in idem," will go on to greatly influence and inspire European and American laws. (2) Legal scholars can further observe the evolution of double jeopardy in Elizabethan-era England. Influenced by the works of Sir Edward Coke and William Blackstone, defendants could enter a special plea claiming previous conviction or acquittal in order to avoid further prosecution. (3) The American colonies then pushed the concept of double jeopardy further by, in some cases, using previous proceedings as a ban on a new trial altogether. However, the official rule of double jeopardy only obtained actual legal status when it entered multiple state bills of rights after the Revolutionary War and later the Fifth Amendment of the United States Constitution. (4) Ever since then, the concept of double jeopardy has continued to be a highly debated and tried topic in the American legal system.

Our constitutional authors worried about a strong federal government wielding too much power, like the sovereign King from whom they had just gained their independence. It is no surprise that they enshrined an individual protection from this abuse in our most enduring foundational document. The Fifth Amendment of the Constitution states, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." (5) But what does this really mean, and how does it apply to our federalist system? 

According to the Cornell Legal Information Institute, Double jeopardy is defined as the inability to be prosecuted or punished twice for the same offense. (6) While double jeopardy usually only applies to criminal charges, in rare instances, extreme civil fines can be seen as amounting to a second punishment and thus protected under the Fifth Amendment. (7) This protection is put in place for many reasons, most notably to protect innocent people from repeated prosecution by the state. Without the protection given by double jeopardy, prosecutors would have too much power, resulting in potential harassment, bullying, and targeting. Double jeopardy also prevents excessive punishments and multiple costly court proceedings. Allowing more than one trial for the same crime would create overcrowding in our courts, along with financial burdens on both the state and the defendant.

Initially, double jeopardy only applied to our federal courts because the Fifth Amendment was not interpreted as a fundamental right that should apply to the states. While some states already had their own laws about double jeopardy, many did not, resulting in individuals being tried multiple times. However, since the landmark 1969 Supreme Court ruling in Benton V. Maryland, double jeopardy now applies to both the state and federal governments. In the majority opinion written by Thurgood Marshall, the court stated, "The double jeopardy prohibition of the Fifth Amendment, a fundamental ideal in our constitutional heritage, is enforceable against the States through the Fourteenth Amendment." (8) Through the due process clause, state governments could no longer retry an individual for the same crime, significantly limiting the power of prosecutors and furthering defendants' rights. After Crist v. Bretz in 1978, double jeopardy also branched out to include trials that have started but have not yet reached a verdict. This case updated the starting point of double jeopardy in the trial process to when the jury is sworn in, instead of the past precedent of when the first witness took the stand. (9) 

It is important to understand that double jeopardy is not a monolithic concept. There are many nuances and situations when an individual is not entitled to the protections of double jeopardy. For example, double jeopardy does not protect against mistrials due to a hung jury, as decided in United States v. Perez. In this ruling, Justice Story stated, "The court is invested with the discretionary authority of discharging the jury from giving any verdict in cases of this nature whenever, in their opinion, there is a manifest necessity for such an act or the ends of public justice would otherwise be defeated." (10)  Additionally, as recently as 2019, the Supreme Court upheld the "separate sovereigns doctrine" in Gamble v. United States. The separate sovereigns doctrine, a precedent set over 170 years ago, describes how the federal and state governments operate as two entities. (11) It allows the state and federal governments to prosecute individuals for the same offense or cause of action. The court reasoned that the different governments have two separate and distinct laws, meaning a person is not being tried twice for the same crime. (12) These cases not only highlight the complexities of double jeopardy but also emphasize the importance of properly understanding how the law applies to specific circumstances.

While double jeopardy clearly has a long-standing history in the American legal system and beyond, it will certainly continue to evolve with our changing legal interpretations. As new methods of investigation, evidence collection, and prosecution enter our courts, double jeopardy could be forced into a more contemporary viewpoint and application. Nonetheless, it remains vital for citizens to recognize double jeopardy's constitutional role and the protections it affords to civil liberties.

Endnotes

1. Coffey, Ger. A History of the Common Law Double Jeopardy  Principle: From Classical Antiquity to Modern Era, July 2022. https://www.athensjournals.gr/law/2022-8-3-3-Coffey.pdf. 

2. Ibid.

3. “Historical Background on the Double Jeopardy Clause.” Constitution Annotated. Accessed March 15, 2025. https://constitution.congress.gov/browse/essay/amdt5-2-1/ALDE_00000857/. 

4. Ibid. 

5. Ibid. 

6. “Double Jeopardy Clause.” Legal Information Institute, September 2022. https://www.law.cornell.edu/wex/double_jeopardy. 

7. Ibid.

8. "Benton v. Maryland." Oyez. Accessed March 20, 2025. https://www.oyez.org/cases/1968/201

9. “Crist v. Bretz, 437 U.S. 28 (1978).” Justia Law. Accessed March 15, 2025. https://supreme.justia.com/cases/federal/us/437/28/. 

10. “United States v. Perez, 22 U.S. 579 (1824).” Justia Law. Accessed March 15, 2025. https://supreme.justia.com/cases/federal/us/22/579/. 

11. “Gamble v. United States.” Harvard Law Review, March 24, 2023. https://harvardlawreview.org/print/vol-133/gamble-v-united-states/. 

12. "Gamble v. United States." Oyez. Accessed March 20, 2025. https://www.oyez.org/cases/2018/17-646.