What is Double Jeopardy?

Double jeopardy keeps criminal defendants from facing prosecution more than once for the same offense (with a few exceptions).

The U.S. Constitution's Fifth Amendment contains a Double Jeopardy Clause, which says that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Most state constitutions similarly protect individuals from being tried twice for the same crime. The double jeopardy clause extends to all felonies, misdemeanors and juvenile delinquency adjudications, regardless of the potential punishment.

Nonetheless, there are some things to keep in mind. First, if a defendant was never previously in legal "jeopardy," then subsequent prosecution is not prohibited. For instance, if prosecutors take certain actions before jeopardy begins, or attaches, such as dismissing the indictment, nothing will prevent them from later trying the same person for the same offense.

When does Jeopardy Attach?

Once someone is charged with a crime, jeopardy attaches at the following stages:

• When the jury is sworn;
• When the first witness is sworn (for cases tried by a judge without a jury);
• When the court first hears evidence in a juvenile proceeding; or
• When the court accepts a plea agreement between a defendant and a prosecutor.