Double jeopardy and the Bill of Rights

Description: A legal guarantee, provided in the Fifth Amendment, that if a person has been acquitted or convicted of an offense, they cannot be prosecuted a second time for that same offense.

Relevant amendment: Fifth

Significance: For nearly two centuries the Supreme Court decided very few double jeopardy cases, but in the last three decades of the twentieth century, it decided many.

The Basic Protection

Jeopardy—the immediate threat of conviction and punishment—attaches in a criminal case when a jury is sworn in or, if there is no jury, when a judge begins to hear evidence. Whether jeopardy has attached is important because events occurring before that time, such as dismissal of the charges, will not preclude a subsequent prosecution; a dismissal of the charges after jeopardy has attached would preclude their being brought again.

A defendant who has been acquitted cannot be prosecuted again for that offense. Even with a relatively weak case, a prosecutor who could try the case multiple times might be able to perfect the presentation of witnesses and evidence so that eventually a jury would agree to convict. The Court found that such a result would be fundamentally unfair and would violate double jeopardy in Ashe v. Swenson (1970). After an acquittal, no matter how strong the state’s evidence may have been, the defendant may not be forced to undergo the stress and expense of another prosecution for that crime, regardless of whether the verdict in the second case is a conviction or an acquittal.

Similarly, the Court ruled that a person cannot be tried again after having previously been convicted of the same offense in Brown v. Ohio (1977). However, in United States v. Ball (1896), the Court found that a necessary exception to this rule does allow a second prosecution of an individual whose conviction was reversed on appeal. There are many reasons why a conviction might be reversed, such as the improper admission of prejudicial evidence or inaccurate instructions to the jury. In these situations, after the reversal of the first conviction, the case could be retried without using the inadmissible evidence and with proper instructions to the jury, and the retrial would not be double jeopardy.

Exceptions

The doctrine protects against only successive criminal prosecutions or punishments; it does not prohibit a criminal prosecution after a civil action or a civil action after a criminal action. For example, property used in the commission of certain crimes, such as houses, cars, and other vehicles used in the manufacture and distribution of illegal drugs, is subject to forfeiture to the government. Such forfeiture actions usually are deemed to be civil rather than criminal punishments. Therefore, in United States v. Ursery (1996), the Court ruled that a person’s having to forfeit his or her house and car to the government because they were used in a drug transaction is not the imposition of double jeopardy, although the individual had previously been criminally convicted and sentenced for the same drug transaction.

Similarly, those who have served the entire sentence for conviction of a sexual offense, such as rape or child molestation, may subsequently be adjudicated as sexually violent predators and ordered confined and treated until it is safe for them to be released. Because the subsequent adjudication is deemed civil and not criminal, the Court, in Kansas v. Hendricks (1997), found there is no double jeopardy, even if such sexual offenders might end up being confined for the rest of their lives.

The dual sovereignty doctrine is another major exception to the protection against double jeopardy. The basic guarantee is that the same sovereign, or government, will not prosecute or punish an individual twice for the same offense. There is no double jeopardy violation, however, if different sovereigns prosecute an individual for the same offense. For these purposes, the federal government of the United States and the government of a given state, such as California, are deemed to be separate sovereigns.

Cities and counties derive their governmental authority from that of the state in which they are located so that neither a city nor a county is considered a separate sovereign from the state. Consequently, prosecutions for the same offense in, for example, Chicago municipal court and Illinois state courts would violate double jeopardy. In Heath v. Alabama (1985), the Court ruled that because the states are separate sovereigns from one another, prosecutions for the same offense by two separate states do not violate double jeopardy. With traditional crimes, such as murder or rape, it would be unusual for two states to have sufficient contact with the crime to have jurisdiction to prosecute it, but many conspiracies, especially those involving illegal drugs, have sufficient contacts with several states to confer jurisdiction on more than one. Nonetheless, dual sovereignty prosecutions involving two or more states are relatively rare.

In 2024, the U.S. Supreme Court, in McElrath v. Georgia, disallowed double jeopardy even when verdicts in the same case resulted in inconsistent rulings. The case concerned Damian McElrath, accused of murdering his stepmother, Diane McElrath, in 2012. In a lower court, Damian McElrath was found guilty of felony murder and aggravated assault. The ruling on the third charge of malice murder found McElrath not guilty by reason of insanity. Upon appeal, the Georgia Supreme Court noted the inconsistency of considering McElrath's insanity on one of the charges, but not the other two. The Georgia Supreme Court nullified the ruling and mandated that a new trial be held.

In its appeal of the Georgia ruling to the U.S. Supreme Court, McElrath's lawyers argued that since he had already been found not guilty on the charge of malice murder, a new trial would jeopardize him a second time for the same offense. The U.S. Supreme Court, in a unanimous decision, agreed. The Supreme Court, nonetheless, limited its ruling such that it left the option open for the state of Georgia to retry McElrath on the other two charges.

Bibliography

Lafave, Wayne, and Jerold Israel. Criminal Procedure. St. Paul, West Publishing, 1985.

McAninch, William. “Unfolding the Law of Double Jeopardy.” South Carolina Law Review, vol. 4, no. 3, 1993, scholarcommons.sc.edu/sclr/vol44/iss3/2. Accessed 28 Aug. 2024.

"McElrath v. Georgia." Oyez, www.oyez.org/cases/2023/22-721. Accessed 28 Aug. 2024.

Miller, Lenord. Double Jeopardy and the Federal System. Chicago, University of Chicago Press, 1968.

Wheeler, Lydia. "Supreme Court Rules for Georgia Man on Double Jeopardy Claim." Bloomberg Law, 21 Feb. 2024, news.bloomberglaw.com/us-law-week/supreme-court-rules-for-georgia-man-on-double-jeopardy-claim. Accessed 28 Aug. 2024.