Double Jeopardy

Fundamentals of Criminal Law

Adam J. McKee, Ph.D.

Jack Brown Ph.D.

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Double Jeopardy

The prohibition against double jeopardy means that the same sovereign entity (state or federal government) cannot prosecute the same individual twice for the same crime. This means that both state governments and the federal government can try the same person for the same act. As a practical matter, this rarely happens unless there are differences to be found in the elements of the crime or the first jurisdiction to prosecute is not successful.

Under AR law, for example, a person can generally be prosecuted where the same conduct constitutes more than one offense. There are five basic circumstances where this is not the case:

  1. Where one offense is an included offense of the other
  2. One offense consists only of a conspiracy, solicitation, or attempt to commit the other
  3. Inconsistent findings of fact are required to establish the commission of the offenses
  4. The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of that conduct
  5. The conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

The first of these prohibitions to prosecution above is often referred to as a lesser included offense. Most jurisdictions bar the state from convicting a person for two offenses where the elements of one offense are part of a greater offense. For example, in jurisdictions where breaking and entering are elements of burglary, a person cannot be convicted of both the burglary and the breaking and entering.  

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

“Rule of Law.” West’s Encyclopedia of American Law.


“Ex Post Facto Laws.” West’s Encyclopedia of American Law.


“Void for Vagueness Doctrine.” West’s Encyclopedia of American Law.


“Equal Protection.” West’s Encyclopedia of American Law.


“Privacy.” West’s Encyclopedia of American Law.  


“Cruel and Unusual Punishment.” Encyclopedia of Crime and Justice.


“Double Jeopardy.” Encyclopedia of Crime and Justice.  



Loving v. Virginia, 388 U.S. 1 (1967).  


Gitlow v. New York, 268 U.S. 652 (1925).


Brandenburg v. Ohio, 395 U.S. 444 (1969).


Miller v. California, 413 U.S. 15 (1973).  


Griswold v. Connecticut, 381 U.S. 479 (1965)


Lawrence v. Texas, 539 U.S. 558 (2003).  


Modification History

File Created:  07/12/2018

Last Modified:  07/12/2018

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

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