DOUBLE JEOPARDY

A second prosecution for the same offense after
acquittal or conviction or multiple punishments for
same offense. The evil sought to be avoided by pro-
hibiting double jeopardy is double trial and double
conviction, not necessarily double punishment.
The FIFTH AMENDMENT to the U.S. Consti-
tution provides, “No person shall . . . be subject
for the same offence [sic] to be twice put in jeop-
ardy of life or limb.” This provision, known as
the Double Jeopardy Clause, prohibits state and
1
D(cont.)federal governments from prosecuting individu-
als for the same crime on more than one occa-
sion, or imposing more than one punishment
for a single offense. Each of the 50 states offers
similar protection through its own constitution,
statutes, and COMMON LAW.
Five policy considerations underpin the dou-
ble jeopardy doctrine: (1) preventing the gov-
ernment from employing its superior resources
to wear down and erroneously convict innocent
persons; (2) protecting individuals from the
financial, emotional, and social consequences
of successive prosecutions; (3) preserving the
finality and integrity of criminal proceedings,
which would be compromised were the state
allowed to arbitrarily ignore unsatisfactory out-
comes; (4) restricting prosecutorial discretion
over the charging process; and (5) eliminating
judicial discretion to impose cumulative punish-
ments that the legislature has not authorized.
Double jeopardy is one of the oldest legal
concepts in Western civilization. In 355 B.C. ,
Athenian statesman Demosthenes said, “[T]he
law forbids the same man to be tried twice on
the same issue.” The Romans codified this prin-
ciple in the Digest of JUSTINIAN I in A.D. 533.
The principle also survived the Dark Ages (A.D.
400–1066), notwithstanding the deterioration of
other Greco-Roman legal traditions, through
CANON LAW and the teachings of early Christian
writers.
In England, the protection against double
jeopardy was considered “a universal MAXIM of
the common law” (United States v. Wilson, 420
U.S. 332, 340, 95 S. Ct. 1013, 1020, 43 L. Ed. 2d
232 [1975]) and was embraced by eminent
jurists HENRY DE BRACTON (1250), SIR EDWARD
COKE (1628), Sir Matthew Hale (1736), and SIR
WILLIAM BLACKSTONE (1769). Nonetheless, the
English double jeopardy doctrine was extremely
narrow. It applied only to defendants who were
accused of capital felonies, and only after con-
viction or acquittal. It did not apply to cases that
had been dismissed prior to final judgment, and
it was not immune from flagrant abuse by the
Crown.
The American colonists, who were intimately
familiar with Coke, Blackstone, and the machi-
nations of the Crown, expanded the protection
against double jeopardy, making it applicable to
all crimes. Yet some perceived James Madison’s
original draft of the Double Jeopardy Clause as
being too broad. It provided, “No person shall be
subject . . . to more than one punishment or one
trial for the same offense” (emphasis added)
(United States v. Halper, 490 U.S. 435, 440, 109 S.
Ct. 1892, 1897 104 L. Ed. 2d 487 [1989]). Several
House members objected to this wording, argu-
ing that it could be misconstrued to prevent
defendants from seeking a second trial on appeal
following conviction. Although the Senate later
amended the language to address this concern,
the final version ratified by the states left other
questions for judicial interpretation.
Double jeopardy litigation revolves around
four central questions: (1) In what type of legal
proceeding does double jeopardy protection
apply? (2) When does jeopardy begin, or, in legal
parlance, attach? (3) When does jeopardy termi-
nate? (4) What constitutes successive prosecu-
tions or punishments for the same offense?
Although courts have answered the second and
third questions with some clarity, they contin-
ued to struggle over the first and last.
Where Jeopardy Applies
Only certain types of legal proceedings
invoke double jeopardy protection. If a particu-
lar proceeding does not place an individual in
jeopardy, then subsequent proceedings against
the same individual for the same conduct are
not prohibited. The Fifth Amendment suggests
that the protection against double jeopardy
extends only to proceedings that threaten “life or
limb.” Nevertheless, the U.S. Supreme Court has
established that the right against double jeop-
ardy is not limited to capital crimes or CORPO-
RAL PUNISHMENT, but that it extends to all
felonies, misdemeanors, and juvenile-delin-
quency adjudications, regardless of the applica-
ble punishments.
In Benton v.Maryland, 395 U.S. 784, 89 S. Ct.
2056, 23 L. Ed. 2d 707 (1969), the U.S. Supreme
Court ruled that the federal Double Jeopardy
Clause is applicable to state and federal prosecu-
tions. Prior to this ruling, an individual who was
accused of violating state law could rely only on
that particular state’s protection against double
jeopardy. Some states offered greater protection
against double jeopardy than did others. The
Court, relying on the doctrine of incorpora-
tion, which makes fundamental principles in the
BILL OF RIGHTS applicable to the states through
the EQUAL PROTECTION CLAUSE of the FOUR-
TEENTH AMENDMENT, said this was not permis-
sible. The right against double jeopardy is so
important, the Court concluded, that it must be
equally conferred upon the citizens of every
state. Under Benton, no state may provide its
residents with less protection against double
jeopardy than that offered by the federal Con-
stitution.
The U.S. Supreme Court has also held that
the right against double jeopardy precludes only
subsequent criminal proceedings. It does not
preclude ordinary civil or administrative pro-
ceedings against a person who already has been
prosecuted for the same act or omission. Nor is
prosecution barred by double jeopardy if it is
preceded by a final civil or administrative deter-
mination on the same issue.
Courts have drawn the distinction between
criminal proceedings on the one hand, and civil
or administrative proceedings on the other,
based on the different purposes served by each.
Criminal proceedings are punitive in nature and
serve two primary purposes: deterrence and ret-
ribution. Civil proceedings are more remedial;
their fundamental purpose is to compensate
injured persons for any losses incurred. Because
civil and criminal remedies fulfill different
objectives, a government may provide both for
the same offense.
The multiple legal proceedings brought
against O. J. (Orenthal James) Simpson in the
death of Nicole Brown Simpson and Ronald Lyle
Goldman illustrate these various objectives. The
state of California prosecuted Simpson for the
murders of his former wife and her friend.
Despite Simpson’s acquittal in the criminal case,
three civil suits were filed against him by the
families of the two victims. The criminal pro-
ceedings were instituted with the purpose of
punishing Simpson, incarcerating him, and
deterring others from similar behavior. The civil
suits were intended to make the victims’ families
whole by compensating them with money dam-
ages for the losses they had suffered.
The distinctions between criminal and civil
proceedings and between punitive and remedial
remedies may appear semantic, but they raise
real legal issues. Courts have recognized that
civil remedies may advance punitive goals.
When they do, double jeopardy questions sur-
face. For example, a civil FORFEITURE or civil
fine, although characterized by the legislature as
remedial, becomes punitive when the value of
the property seized or the amount of the fine
imposed is “overwhelmingly disproportionate”
to society’s loss (Halper). This principle was
exemplified when the U.S. Supreme Court pro-
hibited the federal government from seeking a
$130,000 civil penalty against a man who previ-
ously had been sentenced to prison for the same
offense of filing $585 worth of false MEDICARE
claims (Halper). The Court concluded that the
gross disparity between the fine imposed and
society’s economic loss reflected a punitive
remedial aim.
Conversely, many courts have ruled that
PUNITIVE DAMAGES awarded in civil suits are
not sufficiently criminal for double jeopardy
purposes when the plaintiff seeking those dam-
ages is a private party, not the state. This ruling
can be best explained by noting that the Bill of
Rights guarantees protection only against gov-
ernment action. It does not create a system of
rights and remedies for disputes between private
citizens, as do the laws of contracts and TORTS.
Courts have not determined whether punitive
damages recovered by the government in a civil
suit would bar subsequent prosecution, nor have
they agreed whether a number of administrative
proceedings can be uniformly characterized as
punitive or remedial. Cases involving the revo-
cation of professional licenses, driving privi-
leges, PROBATION, and PAROLE have divided
courts over the purposes underlying these pro-
ceedings.
When Jeopardy Attaches
Courts have provided much clearer guidance
on the question of when jeopardy attaches, or
begins. This question is crucial to answer
because any action taken by the government
before jeopardy attaches, such as dismissal of the
indictment, will not prevent later proceedings
against a person for the same offense. Once
jeopardy has attached, the full panoply of pro-
tection against multiple prosecutions and pun-
ishments takes hold.
The U.S. Supreme Court has held that jeop-
ardy attaches during a jury trial when the jury is
empanelled. In criminal cases tried by a judge
without a jury, jeopardy attaches when the first
witness is sworn. Jeopardy begins in juvenile-
delinquency adjudications when the court first
hears evidence. If the defendant or juvenile
enters a plea agreement with the prosecution,
jeopardy does not attach until the court accepts
the plea.
When Jeopardy Terminates
Determining when jeopardy terminates is no
less important, but somewhat more complicated.
Once jeopardy has terminated, the government