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My friend who recently suggested a column on perjury has given me another challenging topic. He suggested I write about the concept of double jeopardy.

While it is not possible to write an in-depth piece on the subject in the space of this column, I can describe a few core elements.

This has nothing to do with the game show once hosted by the late Alex Trebek. Neither is it a movie review of the 1999 film starring Tommy Lee Jones and Ashley Judd. This is an important part of our system of justice.

Imagine a friend or relative is charged with a criminal offense. Insisting he is innocent, he pleads not guilty and proceeds to jury trial. The jury returns a verdict of not guilty. Before the person can celebrate, the frustrated prosecutor refiles the charge and indicates he will continue until he obtains a conviction even if he has to try it numerous times.

You may be saying “Holy Cow! Can they do that?” No. Subsequent prosecutions for the same offense are barred by the concept of double jeopardy.

The Fifth Amendment to the U.S. Constitution provides, in pertinent part, “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

The rationale behind this concept was explained by the U.S. Supreme Court in a 1957 case, Green V. United States. The court stated: “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. ... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.”

In the scenario described above, our friend is protected if jeopardy has attached. Since our friend chose a jury trial, jeopardy attached when the jury was sworn in. Had he or she waived jury and elected a bench trial, jeopardy would have attached when the first evidence was presented.

Not all applications are as straightforward as the scenario. For example, if the judge declared a mistrial due to a deadlocked jury, our friend could be retried. If the mistrial was based upon misconduct by the prosecution or defense, the determination will depend upon the specific facts that triggered the mistrial ruling.

Things can really get confusing when it is not clear if the trial judge declared a mistrial, dismissed the case or outright acquitted the accused. The judge must decide if retrial is allowed, and that decision is subject to review by the appellate court.

What if our friend had been found guilty by the jury but the conviction was reversed on appeal?

Our friend could be retried unless the appellate court reversed on the basis that as a matter of law, the evidence was insufficient to support the verdict. Then the case is over and the prosecution does not get another opportunity to present more evidence. We can note here that in the original scenario, the prosecution could not appeal the not-guilty verdict.

Now we can look at the situation in which the conduct alleged against our friend was in violation of state as well as federal law. Under what is known as the Dual Sovereignty Doctrine, prosecution in federal court could go forward even after a conviction in state court.

Similarly, prosecution for the same conduct by two states would be permitted. Naturally, the conduct would have to have taken place in those states.

Take, for example, a person accused of driving under the influence of alcohol while driving from Indianapolis to Urbana. That motorist could be prosecuted in both Indiana and Illinois.

It must be acknowledged that there are exceptions to the general rules. This column tried to hit the general concepts. Another thing to remember is that this area of the law can get downright confusing. Even the Supreme Court has recognized that.

In the 1978 case of Burks v. United States, Chief Justice Warren Burger noted, “This Court’s holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity.” So congratulations if you made it all the way through this one.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm. His email is

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