Double Jeopardy

Fundamentals of Criminal Law by Adam J. McKee

The concept of double jeopardy is enshrined in the U.S. Constitution to ensure that individuals are not unfairly subjected to multiple prosecutions for the same offense. While the idea seems straightforward, the application of double jeopardy can get complicated, especially when state and federal jurisdictions are involved. This section will explore what double jeopardy means, how it works in different jurisdictions, and some exceptions to this legal principle.

What Is Double Jeopardy?

Double jeopardy is a procedural defense that prevents an individual from being tried twice for the same crime by the same sovereign entity, either a state or the federal government. This principle is grounded in the Fifth Amendment of the U.S. Constitution, which aims to protect individuals from harassment and abuse of power by the government.

State vs. Federal Jurisdictions

Interestingly, both state and federal governments can try a person for the same act, which might seem like a violation of the double jeopardy clause at first glance. However, because they are considered separate sovereign entities, this is permissible. In practice, though, dual prosecutions are rare and usually occur only when the initial prosecution fails or the elements of the crime differ across jurisdictions.

The Arkansas Example

Arkansas (AR) law provides an excellent example of how double jeopardy works in specific states. Generally, a person can be prosecuted in Arkansas if their conduct qualifies as more than one offense, except under certain circumstances.

Exceptions Under AR Law

Arkansas identifies five basic exceptions where double jeopardy would apply, which include:

  1. Lesser Included Offenses: This is when one offense is a part of a greater offense. For example, if breaking and entering are elements of burglary, a person cannot be convicted for both.
  2. Conspiracy, Solicitation, or Attempt: One offense consists solely of a conspiracy, solicitation, or an attempt to commit the other.
  3. Inconsistent Findings of Fact: In situations where inconsistent findings would be necessary to establish the commission of the offenses.
  4. General vs. Specific Conduct: When one offense prohibits a general kind of conduct, and the other targets a specific instance of that conduct.
  5. Continuing Course of Conduct: When the behavior in question constitutes an offense defined as ongoing conduct, and the defendant’s actions were uninterrupted.

Lesser Included Offenses: A Closer Look

The concept of lesser included offenses is prevalent in many jurisdictions beyond Arkansas. The idea is that you can’t be convicted for both a greater and a lesser offense when they relate to the same conduct. For instance, one cannot be convicted for both robbery and theft when the robbery charge already encompasses the elements of theft.

Implications and Controversies

While the principle of double jeopardy aims to protect individuals from the abuse of state power, it’s not without controversies. One of the main debates is about the “separate sovereigns” doctrine that allows state and federal governments to prosecute the same individual for the same act. Critics argue that this runs counter to the spirit of the double jeopardy clause, even if it doesn’t technically violate it.


The prohibition against double jeopardy is a complex yet integral part of the U.S. legal landscape. While the fundamental premise is simple, its application becomes complicated when multiple jurisdictions and nuanced legal definitions come into play. Understanding these intricacies is vital for both legal practitioners and the general public, as this principle directly impacts the fairness and integrity of the judicial system.

Key Terms

Cruel and Unusual Punishment, Double Jeopardy, Due Process, Equal Protection Clause, Ex Post Facto Law, Federalism, First Amendment rights, Judicial Review, Lesser Included Offense, Right to Privacy, SCOTUS

References and Further Reading


Modification History

File Created:  07/12/2018

Last Modified:  09/05/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License

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