The Common Law

Double jeopardy – What is it?

I don’t really understand the idea of double jeopardy. Could you explain when it applies and when it doesn’t? – Dave

Found in the 5th Amendment of the US Constitution and Article 1 of the Texas Constitution, double jeopardy is a principle deeply ingrained in the American idea of liberty. Practically stated, double jeopardy means that no individual shall be prosecuted for the same crime twice or receive several punishments for the same offense.

Over time, however, courts have identified some instances where the double jeopardy principle should be limited. First, if a crime violates both federal and state law, then the defendant may face prosecution in both federal and state courts for essentially the same crime. This is referred to as the Dual Sovereignty doctrine.

Double jeopardy does however protect the individual from being tried in state court and then again in state court or, in the alternative, in federal court and then again in federal court. But there is a limitation to that rule called Multiple Offenses doctrine. If an individual commits a crime that involves multiple offenses, he may be subject to more than one criminal trial in that same court. For example, if someone were to cause a traffic accident and then leave the scene when police arrive, that person could be charged with both fleeing the scene and resisting arrest. If only one charge was brought and the person was acquitted in state court, that person could still face prosecution for the other charge, even though it was one act in time and involved the same crime, with essentially the same elements.

There could also be cases where new evidence arises and causes one of these earlier discussed doctrines to apply. In this situation, the new evidence must offer proof of another charge that was not tried in the first trial. For example, under the double jeopardy doctrine, O.J. Simpson cannot be tried for the murder of Nicole Brown Simpson and Ron Goldman again. But, if new evidence were to surface that suggested O.J. Simpson hired the hit man who killed them, he could face trial in the same court for conspiracy to murder Brown Simpson and Goldman.

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Marrs, Ellis & Hodge LLP,

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or

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