12.1 The Constitutional Basis

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

12.1 The Constitutional Basis

The Fifth Amendment contains what is commonly termed the Double Jeopardy Clause. It states: "[N]or shall any person be subject for the same offen[s]e to be twice put in jeopardy of life or limb."¹ Literally interpreted, it seemingly protects only defendants who are risking capital or corporal punishment because such penalty physically threatens one's life or body. However, the provision has come to protect all defendants who are charged with any crime or who face punishment.² While the issue of double jeopardy is not raised often, it involves important, complex, and—frequently—technical rules of law.

The clause prohibits any defendant, whether in a state³ or a federal prosecution, from being twice punished or prosecuted for the same offense by the same sovereign.⁴ By its terms, the Double Jeopardy Clause is not applied in noncriminal cases.⁵ Thus, an individual may receive both a criminal and civil sanction for the same act.⁶

The Double Jeopardy Clause has two principal aims—to protect the individual from multiple trials and convictions for the same offense and to avoid multiple punishments for a single crime.⁷ The rule in practice can become complicated when applied to differing factual circumstances. "That its application has not proved to be facile or routine is...