Fifth Amendment – Protection Against Double Jeopardy

1784N.H. Constitution Adds First Double Jeopardy Clause

The New Hampshire Constitution adopts a bill of rights that includes the new nation’s first double jeopardy clause, stating: “No subject shall be liable to be tried, after an acquittal, for the same crime or offence (sic).”

1791Fifth Amendment Ratified

The Bill of Rights, including the Fifth Amendment, is ratified. The amendment contains several clauses that provide protection against governmental abuse of criminal law. Another clause says that no one “shall be deprived of life, liberty, or property without due process of law.” The amendment protects individuals by limiting government’s power of eminent domain under which it can confiscate private property.

18892nd Trial For Same Conduct Violates Double Jeopardy Clause

In In re Nielson, the U.S. Supreme Court rules the double jeopardy clause is violated by the attempted prosecution of a defendant for adultery when he already had been convicted of unlawful cohabitation. Because the cohabitation conviction meant the defendant had been found guilty of living with a woman to whom he was not married, the adultery offense was included in that conviction and could not be the basis for a new criminal charge. The defendant, a Mormon, was charged with these crimes because he lived with multiple wives.

1922Conviction In Both Federal And State Court Not Double Jeopardy

A defendant who had been convicted in state court objects to having to stand trial in federal court for the same crime. In United States v. Lanza, the U.S. Supreme Court rules that the double jeopardy clause was not violated because the state and federal legal systems are different government “units,” and that each can determine what shall be an offense against its peace and dignity.

1932Multiple Prosecutions Allowed For Crimes Arising From Single Act

In Blockburger v. U.S., the U.S. Supreme Court rules that the double jeopardy clause is not violated when a defendant is convicted of two different crimes arising from a single act. The defendant was convicted under two federal laws for making a single sale of morphine to a single customer: selling a drug separately from its original packaging and selling it without a prescription. The Court rules that because the two crimes require proof of different “elements,” they should not be considered the same crime, and therefore, two convictions can result. The “same elements” test – i.e., if two crimes require proof of the same elements, then double jeopardy prevents prosecution of a defendant for both crimes – is one of the most enduring principles in the interpretation of the double jeopardy provision.

1937Double Jeopardy Clause Does Not Apply To States

In Palko v. Connecticut, the U.S. Supreme Court rules that double jeopardy protections do not extend to defendants in state criminal trials. The Court says that while some fundamental rights, such as free speech, apply to states through the 14th Amendment, double jeopardy protection is not one.

1958Multiple Sentences Allowed For Multiple Convictions

In Gore v. United States, the U.S. Supreme Court rules that it is constitutional for a defendant convicted of multiple crimes arising from a single act to be sentenced to serve multiple prison terms. In this case, the defendant was convicted of three different crimes arising out of drug sales made on two consecutive days. For the crimes committed on the first day, the defendant was given three sentences to be served consecutively. The three sentences for the same crimes committed on the second day would be considered to be served concurrently.

1969Double Jeopardy Applies To State Trials

In Benton v. Maryland, the U.S. Supreme Court rules that the double jeopardy clause represents a fundamental ideal of “our constitutional heritage,” and extends double jeopardy protection to defendants in state court trials. The justices also cite the 14th Amendment’s prohibition on state governments limiting liberty without due process. Double jeopardy, the Court rules, violates the due process rights of the accused.

1969Court Rules Double Jeopardy Also Applies To State Trials

In Benton v. Maryland, the U.S. Supreme Court says the double jeopardy clause “represents a fundamental ideal of our constitutional heritage.” As such, the court extends double jeopardy protections to defendants in state court trials, reversing its 1937 decision Palko v. Connecticut in which it said the double jeopardy clause did not apply to states. In Benton, the justices cite the 14th Amendment’s prohibition on state governments from limiting liberty without due process. Double jeopardy, they say, violates the due process rights of the accused.

1975Double Jeopardy Protections For Juveniles Announced

In the case Breed v. Jones, the U.S. Supreme Court finds that once juveniles are an “adjudicated delinquent” in juvenile court – the equivalent of being found guilty of violating a criminal statute – they cannot then be tried for the same crime in adult criminal court, even if the juvenile court has not yet imposed a sentence. To do so, the Court says, would violate the constitutional protection against “double jeopardy.”

1978Prosecution Gets One Chance At Conviction

In Burks v. United States, the government wants to retry a defendant who won an appeal of his conviction based on insufficient evidence at trial. The U.S. Supreme Court rules that a new trial, or a “do-over,” would violate the double jeopardy clause: “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”

19782nd Trial Allowed If Charges Dismissed In Midtrial

In U.S. v. Scott, the U.S. Supreme Court decides that a defendant who won a dismissal of charges against him before a jury issued its verdict can be tried a second time if the prosecution wins an appeal of the dismissal. The Court says double jeopardy protections are not violated if the grounds for dismissal are “not related to factual guilt or innocence.”

1980Court Limits When Multiple Punishments Allowed For Single Act

In Whalen v. United States, a defendant is convicted of rape and “felony murder” – meaning that he committed murder in the course of committing the rape (called a “lesser included offense”). The U.S. Supreme Court rules that imposing a sentence for both crimes violates the double jeopardy clause. The Court says that such multiple punishments arising out of the same incident are permissible only when the multiple crimes are different (as in Blockburger, 1932, and Gore, 1958), not when one crime is a necessary element of the other one, as is the case in felony murder.

1984Defendant’s Request For New Trial Does Not Trigger Double Jeopardy

In Justices of Boston Municipal Court v. Lydon, the U.S. Supreme Court considers a defendant’s attempt to avoid a new trial under unusual conditions. Massachusetts law allows defendants in certain criminal cases to choose to have their cases heard by a judge or by a jury. If convicted by a judge, the defendant can ask for a new trial in front of a jury. In Lydon, the defendant chose the first option, and the judge convicted him. The defendant then asked for a new trial before a jury. But he also brought a claim in federal court that the double jeopardy clause prohibited the second trial from going forward, because there had not been enough evidence to convict him at the first trial and that the prosecution should not get a second chance (as the Supreme Court ruled in Burks, 1978). The court disagrees, finding that because the defendant is asking for the second trial, not the prosecution, the second trial “does not constitute governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.”

1989Double Jeopardy May Bar Civil Suit For Actions Already Criminally Prosecuted

In United States v. Halper, the U.S. Supreme Court rules that a defendant cannot be sued for the same actions that led to his criminal prosecution, if the potential penalty in the civil litigation is so large that it should be considered “punishment.” In Halper, the manager of a medical lab had been prosecuted under the federal false claims law for filing fake Medicare reimbursement claims. After his conviction, the government then filed a civil lawsuit under the false claims law, seeking damages of nearly $150,000. The Court rules that because those damages so far exceeded what the government actually lost as a result of the manager’s wrongdoing – $585 – it would be inflicting a second “punishment.” So, the civil action is barred by the double jeopardy clause.

1990Multiple Prosecutions Cannot Arise From Single Act If Based On ‘Same Conduct’

In Grady v. Corbin, the U.S. Supreme Court considers the case of a defendant who, while driving drunk, crossed a median and crashed into another car, killing a passenger. The defendant pleaded guilty to drunken driving and crossing the median. Soon after, the district attorney brought different charges – for reckless manslaughter, second-degree vehicular manslaughter, and criminally negligent homicide. The Court rules that in addition to the “same elements” test outlined in the 1932 Blockburger case – which prohibits multiple crimes to be charged for a single act, if the crimes require proof of the same elements – the double jeopardy clause also prohibits multiple crimes arising out of a single act that require proof of the “same conduct.” Because proving the defendant in Grady guilty of homicide would require proving that he was guilty of driving drunk and of crossing the median, and because the defendant already had pleaded guilty to both of those charges, the second prosecution violates the double jeopardy clause.

1992Prosecution For Conspiracy To Commit Crime And For Crime Itself Is Upheld

In U.S. v. Felix, the U.S. Supreme Court rules that it does not violate double jeopardy for a defendant to be prosecuted for conspiracy to commit a crime (in this case, conspiracy to manufacture, possess, and distribute illegal drugs) and for the crime itself (in this case, manufacture and possession of illegal drugs). Although it violates double jeopardy to prosecute a defendant for one crime and for a “lesser included offense” of that crime (such as in Whalen, 1980), the Court says that “a conspiracy to commit a crime is a separate offense from the crime itself.”

Announcing an exception to its 1990 decision in Grady v. Corbin, the Court also rules that it is not a double jeopardy violation for the prosecution in an Oklahoma trial to use some of the “same conduct” that was used against the defendant in prosecuting him for the same charges in a Missouri trial: “[A] mere overlap in proof between two prosecutions does not establish a double jeopardy violation.”

1993Court Overrules ‘Same Conduct’ Test

In U.S. v. Dixon, the U.S. Supreme Court overrules its 1990 holding in Grady v. Corbin that the double jeopardy provision prohibits prosecutions for multiple crimes when the “same conduct” by the defendant is the basis for those charges. In Dixon, the Court rules that the 1932 Blockburger decision’s “same elements” test is the only one that matters when deciding whether the double jeopardy clause is violated.

1994Special Marijuana Tax Violates Double Jeopardy Clause

In Department of Revenue v. Kurth Ranch, the U.S. Supreme Court rules that the double jeopardy clause prohibits a state from imposing a special tax on individuals who have been convicted of growing marijuana. The Court rules that because the tax is more like punishment than a typical revenue-raising measure – in that it is imposed only on people who have been convicted of growing marijuana and who no longer own the “property” for which they are being taxed because it has been confiscated by police – that it is a second penalty for the same offense. Therefore, the double jeopardy clause does not permit it.

1997Civil Penalty Does Not Bar Criminal Prosecution Based On Same Acts

In Hudson v. United States, the U.S. Supreme Court rules that it does not violate the double jeopardy clause to criminally prosecute bank officers for making illegal loans, even though the officers already had paid civil fines and had been barred from working in the banking industry. Overruling its 1989 holding in U.S. v. Halper, the Court rules that the double jeopardy clause prevents only multiple criminal prosecutions and/or punishments. When only a civil penalty has been imposed, a later criminal prosecution based on the same acts will be allowed.

2003Death Sentence Imposed After Retrial Not Double Jeopardy

A defendant is convicted of first-degree murder, but the jury cannot reach a unanimous decision whether to sentence the defendant to death or to life in prison. By default, a life sentence is imposed. The defendant appeals his conviction and wins a retrial, but the second jury unanimously hands down a death sentence. In Sattazahn v. Pennsylvania, the U.S. Supreme Court rules that this second verdict does not violate the double jeopardy clause because the first jury’s inability to reach a unanimous verdict means that there was no official finding of the facts regarding what kind of penalty the defendant deserved. As these questions remain open at the time of the second trial, the second jury can look at the facts again.

2004Double Jeopardy Claims Do Not Apply To Tribal Court Cases

In United States v. Lara, the U.S. Supreme Court rules that double jeopardy claims do not apply to Indian tribes since they act as sovereign nations. The defendant, Billy Jo Lara, was convicted in a tribal court of assaulting an officer from the federal Bureau of Indian Affairs. When the federal government charged him with the same offense, Lara invoked his Fifth Amendment right against double jeopardy. However, the Court says that since the tribe that convicted Lara was considered a “separate sovereign,” Lara’s double jeopardy claims were invalid.

2019Double Jeopardy Exception Is Affirmed

The U.S. Supreme Court votes, 7-2, in Gamble v. United States to uphold a precedent allowing prosecutions in both federal and state court for the same offenses. The double jeopardy clause in the Fifth Amendment of the Constitution generally does not allow a defendant to be tried twice for the same offense. However, the high court has said that because the federal government and states are independent sovereigns, separation prosecutions for the same offense are allowed.