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Double Jeopardy: Analysis of the Constitutional Protection

By Los Angeles Criminal Defense Attorney on February 20, 2024

The Fifth Amendment to the United States Constitution guarantees that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This protection, known as the Double Jeopardy Clause, is a fundamental right that shields individuals from being tried or punished more than once for the same alleged offense.

In most situations, you cannot be retried for the same offense in a criminal court if you have already been found not guilty. But there are nuances and exceptions that complicate the issue, such as appeals, mistrials, and cases of dual sovereignty.

The Los Angeles criminal defense lawyers at Werksman Jackson & Quinn LLP help clients navigate these complex legal matters, and protect their rights when questions about double jeopardy arise in criminal cases.

What Is Double Jeopardy?

Double jeopardy is the constitutional protection that prevents the government from prosecuting someone multiple times for the same offense. It also prohibits multiple punishments for the same criminal act. Once a person has been acquitted or convicted of a crime, they cannot be retried for that same crime in the same jurisdiction.

This protection is designed to limit government power, prevent harassment, and preserve the finality of criminal proceedings, however it is not absolute. Courts have developed several exceptions and clarifications, particularly in cases involving mistrials, appeals, or charges brought by separate jurisdictions.

Don’t Let the Government Bend the Rules

You shouldn’t be facing prosecution for the same charges again when double jeopardy applies. Call (213) 688-0460 for a confidential consultation.

Types of Double Jeopardy Situations

Double jeopardy applies in several specific scenarios, each protecting individuals from repeated legal jeopardy for the same offense.

Acquittal

If you are found not guilty by a judge or jury, that acquittal is final. The government cannot appeal or retry the case, even if new evidence emerges later. This is the most clear-cut application of double jeopardy protection.

Conviction

Once convicted, a defendant cannot be retried for the same crime, even if the sentence is deemed too lenient. However, convictions may be appealed by the defendant, and a successful appeal could result in a retrial.

Protection Against Multiple Punishments

Double jeopardy also prohibits multiple punishments for the same offense under the same legal authority. For example, a person cannot be sentenced twice under two overlapping statutes for the same conduct unless Congress or the legislature clearly intended multiple punishments.

Double Jeopardy Exceptions and Nuances

Although the Double Jeopardy Clause offers strong protections, there are important exceptions and gray areas that can significantly impact how those protections apply in real-world cases.

Mistrials

If a trial ends in a mistrial due to a hung jury, procedural error, or other reasons, a retrial is usually allowed. Jeopardy attaches when the jury is sworn in or when the first witness is called in a bench trial, but a mistrial does not necessarily bar a second prosecution. However, if the mistrial is caused by prosecutorial misconduct or bad faith, the defendant may have a valid double jeopardy claim.

Appeals

A defendant can always appeal a conviction without violating double jeopardy principles. However, the government generally cannot appeal an acquittal. If a conviction is overturned on appeal due to legal error, the case may be retried. But if the conviction is reversed due to insufficient evidence, a retrial is barred.

Understanding Collateral Estoppel

Collateral estoppel is a doctrine related to double jeopardy. It means that once a factual issue has been resolved in the defendant’s favor, the government cannot re-litigate that same issue in a subsequent prosecution. For example, if a jury finds that the defendant was not present at the scene of a crime, the prosecution cannot bring a different charge that depends on proving the defendant was there.

Dual Sovereignty Doctrine

One of the most important exceptions to double jeopardy is the dual sovereignty doctrine. This principle holds that separate sovereigns (e.g., state and federal governments) can prosecute an individual for the same conduct under their respective laws. For example, a person acquitted in state court may still face federal charges for the same act, and vice versa.

While the U.S. Supreme Court has upheld this exception, it has been criticized as undermining the spirit of double jeopardy protections. Still, it remains the law, and individuals facing parallel state and federal charges must be prepared for the added complexity.

Why a Civil Conviction Is Not Double Jeopardy

Double jeopardy applies only to criminal cases. Civil proceedings, such as lawsuits for damages, license revocations, or administrative penalties, are not considered criminal prosecutions. Therefore, being sued in civil court after a criminal case does not trigger double jeopardy protections.

For example, someone acquitted of assault in criminal court may still be sued in civil court by the victim for medical expenses or emotional distress. The famous O.J. Simpson case illustrates this distinction: he was acquitted in criminal court but held liable in a civil wrongful death lawsuit.

How a Lawyer Can Help

Double jeopardy is a powerful constitutional shield, but only if it is properly raised in court. An experienced criminal defense attorney can:

• Determine whether double jeopardy applies to your case
• Challenge improper retrials or overlapping charges
• Assert collateral estoppel to block re-litigation of resolved facts
• Argue prosecutorial misconduct in cases involving mistrials
• Navigate dual sovereignty issues in state and federal prosecutions
• Protect your constitutional rights during appeals and post-conviction proceedings

At Werksman Jackson & Quinn LLP, our attorneys are well-versed in the constitutional and procedural nuances of double jeopardy. We know when and how to raise this defense, and we use it strategically to shield our clients from government overreach and unfair repeat prosecutions.

What Clients Are Saying About Us

Fantastic defense attorney- Alex B. (5-Star Avvo Review)

Fantastic defense attorney. Alan Jackson is an incredibly skilled and seasoned attorney. He has passion for his clients and the law and you would be a fool not to hire him.

I would trust them with my life-JoAnn G. (5-Star Yelp Review)

They’re amazing [with] integrity [and] accessibility. They truly saved the life of someone I know. I recommend them beyond all. I would trust them with my life.

Case Results

Unites States Attorney’s office drops charges against client accused of securities fraud

Mark Werksman represented a Los Angeles securities trader and hedge fund manager facing federal prosecution for securities fraud. If indicted, he would have been stripped of his securities licenses, and if convicted, he would have done five years in a federal prison. Mark convinced the Unites States Attorney’s office to decline prosecution.

No conviction for woman charged with insurance fraud

Mark Werksman, assisted by Elizabeth Little, stopped the LA District Attorney’s Office in their tracks by preventing them from convicting their client in a four week workers’ compensation insurance fraud trial. Their client, a successful payroll service provider in the Inland Empire was accused of a $3 million fraud against her business clients for allegedly failing to acquire workers’ compensation insurance for them.

After three days of deliberations, a Los Angeles Superior Court jury deadlocked, causing a mistrial. Werksman’s tenacious defense and creative rebuttal of the prosecution’s 37-witness case caused the jury to deadlock which prevents the District Attorney’s Office from obtaining a conviction against their 63-year-old client. “While a hung jury is not an ideal outcome,” Werksman said, “our job is to prevent our client from being convicted and we accomplished that critical goal.” The key to success was in the Firm’s ability to absorb, digest, and rebut hundreds of thousands of pages of discovery in a complex financial crimes case and to present a coherent and persuasive defense to the jury.

Why Choose Us Over Other Criminal Defense Lawyers in Los Angeles?

When you sign on with Werksman Jackson & Quinn LLP, you’re gaining the power of an entire legal team with decades of collective courtroom success. Our firm is built on providing aggressive defense strategies for our clients when the stakes are high.

• Led by Former Prosecutors – Including a former Assistant United States Attorney and former Assistant Head Deputy of the L.A. County DA’s Major Crimes Division
• Top Trial Lawyers – Proven experience winning complex, high-stakes jury trials
• Nationally Recognized – Regularly listed by Super Lawyers and rated AV Preeminent® by Martindale-Hubbell
• Trusted in High-Profile Cases – Discreetly representing celebrities, public officials, executives, and professionals
• White-Collar and Violent Crime Defense – Skilled in handling both non-violent and serious felony charges
• Known by Prosecutors and Judges – Our reputation means we negotiate from a position of strength
• Strategic Legal Thinkers – We prepare every case with trial in mind from day one

Reasons to See a Lawyer Right Away

Even if you think your case is closed, the government may try to bring additional charges or re-litigate issues from a prior proceeding. Don’t wait for the process to restart. Let us evaluate your situation, assert your rights, and protect you from unlawful prosecution.

If you are facing charges that may implicate double jeopardy, or if you have been retried or recharged after an acquittal or conviction, it is critical to speak with a lawyer immediately. Here’s why:

• Preserve Your Rights Early – Failing to raise a double jeopardy claim at the right time could result in a waiver of that defense.
• Prevent a Second Prosecution – An attorney can intervene before charges are filed or refiled.
• Avoid Additional Penalties – Prosecutors may stack charges or seek multiple punishments unless challenged.
• Analyze Complex Legal Doctrines – Double jeopardy intersects with other legal principles like collateral estoppel and dual sovereignty; a lawyer can sort through them.
• Strategic Negotiation and Dismissal – Experienced lawyers may persuade prosecutors to drop improper charges or avoid re-indictment altogether.

Speak With an Experienced Criminal Defense Lawyer in Los Angeles

If you believe you are being charged again for something you’ve already faced in court, or if you’re unsure whether double jeopardy applies in your case, contact Werksman Jackson & Quinn LLP right away.

Our attorneys offer strategic advice, and we can take immediate steps to defend your rights under the U.S. Constitution.

Call (213) 688-0460 to learn more today.

Double Jeopardy FAQs

What is double jeopardy?

Double jeopardy is a constitutional protection under the Fifth Amendment that prevents a person from being tried or punished more than once for the same offense by the same sovereign.

When does double jeopardy apply?

It applies after a person has been either acquitted or convicted in a criminal case. Once jeopardy has “attached,” the government generally cannot retry the person for the same crime.

Can I be tried in state and federal court for the same offense?

Yes. Under the dual sovereignty doctrine, both state and federal governments can prosecute the same conduct under their own laws without violating double jeopardy.

What’s the difference between a mistrial and an acquittal?

An acquittal is a final decision of not guilty, which bars retrial. A mistrial, however, typically allows for a retrial unless the mistrial was caused by misconduct or bad faith by the prosecution.

Can the government appeal an acquittal?

No. Once a defendant is acquitted, that decision is final and cannot be appealed by the prosecution, even if they disagree with the outcome.

Does double jeopardy apply to civil or administrative cases?

No. Double jeopardy protections only apply to criminal proceedings. Civil lawsuits, license revocations, and administrative penalties can still occur after a criminal case.

Can I face new charges based on the same facts?

Possibly. If the new charges involve a different offense under a different statute, and the legal elements are not identical, prosecutors may attempt to pursue them. Your attorney can challenge this based on double jeopardy or collateral estoppel.

What is collateral estoppel in criminal law?

Collateral estoppel prevents the government from re-litigating a factual issue that was already decided in the defendant’s favor in a previous case. It is closely related to double jeopardy protections.

Does double jeopardy protect me if I win on appeal?

If your conviction is overturned on appeal due to legal error, you can generally be retried. However, if the reversal is due to insufficient evidence, then double jeopardy bars a second prosecution.

How can Werksman Jackson & Quinn LLP help with a double jeopardy issue?

We analyze the charges, verdict history, and applicable law to determine whether your rights have been violated. If double jeopardy applies, we move quickly to dismiss the charges and protect you from unconstitutional prosecution.

About Our Law Firm

Werksman Jackson & Quinn LLP is a premier criminal defense firm based in Los Angeles, representing clients in the most serious and high-stakes legal matters across California and beyond. Our attorneys are known for their ability to resolve complex, high-profile cases with discretion, precision, and results.

We handle a wide range of state and federal criminal cases, including white-collar crimes, violent felonies, sex offenses, drug charges, and grand jury investigations. Our clients include public figures, professionals, business executives, and individuals who simply cannot afford a misstep in the legal system.

The firm is led by an elite team of attorneys with unmatched experience. Founding partner Mark Werksman is a former Assistant U.S. Attorney and Los Angeles County Deputy District Attorney who has spent decades inside and outside the courtroom. Partner Alan Jackson, a former Assistant Head Deputy of the Major Crimes Division, is known for successfully trying some of the most complex and publicized cases in California. Partner Kelly Quinn is a certified specialist in writs and appeals, guiding post-conviction matters with unmatched technical skill.

Our legal team includes former senior prosecutors who understand how criminal cases are built, and how to effectively challenge them. We approach every case with the mindset that it may go to trial, preparing thoroughly and negotiating only from a position of strength.

Whether you’re facing an early-stage investigation, a grand jury subpoena, or an active criminal charge, Werksman Jackson & Quinn LLP offers aggressive, strategic defense focused on protecting your freedom, your record, and your future.

When the stakes are high, experience matters. Call (213) 688-0460 to speak with a defense team you can trust.