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The Fifth Amendment Guarantee Against Double Jeopardy

Cain Kills AbelThe US Constitution‘s Fifth Amendment requires government procedures to protect the natural, inalienable rights of life, liberty and the pursuit of happiness recognized in the Declaration of Independence. Among these protections is a limit on multiple prosecutions based upon the same alleged conduct.  This limitation is commonly referred to as a protection from “double jeopardy”.

The Double Jeopardy Clause

The Fifth Amendment’s Double Jeopardy Clause reads:

“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;…”

Goals and Three Separate Elements in Double Jeopardy Protection

Among the goals of the Double Jeopardy Clause are to protect an individual from government harassment by multiple prosecutions of the same alleged act, to guarantee the finality of an acquittal, and to prohibit the state from putting the defendant through the emotional, psychological, physical, and financial troubles associated with multiple trials based upon the same allegation. The Double Jeopardy Clause achieves these ends through three distinct guarantees:

  • a defendant will not face a second prosecution after an acquittal
  • a defendant will not face a second prosecution after a conviction
  • a defendant will not receive multiple punishments for the same offense

Differing Development from Other Bill of Rights Protections

Many Bill of Rights governmental limitations are traced to the Magna Carta and evolved in the English common law inherited by the American colonists.  Others, such as First Amendment protections for religion, speech and press or the Second Amendment right to bear arms are rooted in natural law and evolved from the uniquely American experience. Double Jeopardy protections have a misty but longer history.

There are no Double Jeopardy protections in the Magna Carta.  John Locke’s theories of Natural Law and Rights do not refer to Double Jeopardy.[1] Traditions against twice punishing a person may be traced much further than English common law.[2]

The First Murder and First Case Prohibiting Multiple Punishments

Adam and Eve‘s first son was Cain and their second son was Abel.  Cain killed his brother Abel in the first biblically recorded murder.  The Lord and Abel had the following exchange:

The Lord said, “What have you done? Listen! Your brother’s blood cries out to me from the ground. Now you are under a curse and driven from the ground, which opened its mouth to receive your brother’s blood from your hand. When you work the ground, it will no longer yield its crops for you. You will be a restless wanderer on the earth.”

Cain said to the Lord, “My punishment is more than I can bear. Today you are driving me from the land, and I will be hidden from your presence; I will be a restless wanderer on the earth, and whoever finds me will kill me.”

But the Lord said to him, “Not so; anyone who kills Cain will suffer vengeance seven times over.” Then the Lord put a mark on Cain so that no one who found him would kill him.   Genesis 4:10-15 (NIV)

Cain had killed his brother. The Lord pronounced Cain guilty and sentenced him. Cain worried others would punish him beyond the Lord’s sentence. The Lord marked Cain and prohibited further punishment for the murder. Cain had received the Lord’s guarantee against double jeopardy.

Complex Questions about Double Jeopardy Under the Fifth Amendment

Fifth Amendment law of Double Jeopardy is extremely complex.  Questions include:

  • What is “jeopardy”?[3]
  • When is someone in “jeopardy” and when does it “attach”?[4]
  • What is the “same offense”?[5]
  • What is “acquittal”?[6]

If it doesn't fit you must acquitOther Double Jeopardy Considerations

The Double Jeopardy Clause applies to both the federal and state governments.[7] Double Jeopardy protections apply only to criminal offenses. A person may be found not guilty in a criminal case and yet be sued in a civil proceeding by the victims.[8]

An Ancient Principle That Remains in Development

The principle that a person should receive but a single punishment for a single act or once found not guilty should not be prosecuted again is ancient in concept. The Lord acted upon the principle in providing that Cain would receive no further punishment.  Ancient Roman law provided:  “nemo debet bis puniri pro uno delicto”.[9] William Blackstone declared the principal to be a universal maxim of the common law.  Despite the long history[10] and its expression in the Fifth Amendment, the issue of Double Jeopardy remains a work in progress.


[1]Though in 1669 Locke had drafted a constitution for the Carolina’s that was never adopted that included the language: “[n]o cause shall be twice tried in any one court, upon any reason or pretence whatsoever.”

[2] Ancient Jewish law recognized some form of the principle, as did early Greek law, classical Roman law, and church law. It was introduced into English common law in the early thirteenth century. Sir William Blackstone had declared a “universal maxim of the common law” to be “no man is to be brought into jeopardy of his life more than once for the same offence.” The rule against multiple punishments/prosecutions has existed in some form through human history.  For a detailed discussion see:  A Brief History of The Fifth Amendment Guarantee Against Double Jeopardy

[3]“Jeopardy” is typically considered being in danger of a criminal penalty that may deprive someone of their liberty.

[4]The legal term of art “attach” generally means the moment that a trial and the process for determining guilt or innocence have begun.  In a case before a jury, it is when the juror is sworn in to hear evidence.  In a case heard only by a judge, it is when the first witness testifies. However, even these basic rules have exceptions, and a defendant may be tried again after a mistrial in many situations, or he may win an appeal and also be tried again.

[5]A single act may violate more than one law or there may be lesser included offenses.  The same act may violate a state law and a federal law and a defendant can be found not guilty in federal court and tried again in state court or vice versa.  Typically the issue of “same offense” revolves around the conduct of the defendant, not the evidence the state uses to prove the conduct.

[6]While a jury verdict of “not guilty” is clearly an acquittal, there are other ways a prosecution may terminate that are not so clear, including sometimes a judicial finding of not guilty.

[7]Originally the Fifth Amendment only placed limits on the federal government. The 14th Amendment extended most Bill of Rights protections to the states.

[8]A well-known example of this is the O. J. Simpson saga. Simpson was found not guilty criminally of killing Nicole Simpson and Ron Goldman. The victims’ families later sued Simpson in a wrongful death action and he was found liable for the murders and ordered to pay $33.5 million.

[9]“[n]o one ought to be punished twice for the same offense.”

[10]Possibly dating to creation as it appears in the Book of Genesis.

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  2. […] While in civil cases a judge may modify a jury’s verdict, in a criminal case, a jury verdict of “not guilty” cannot be altered by the judge[11] in keeping with the Fifth Amendment guarantee against double jeopardy. […]

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