Double Jeopardy: Why the Prosecution Cannot Appeal in a Criminal Case

double jeopardy

Defendants who are found guilty of a crime appeal the verdict all the time. Sometimes they succeed in getting their conviction overturned or a retrial declared. Have you ever wondered why the prosecution cannot appeal in a criminal case?

The Legal Concept of Double Jeopardy

double jeopardy
The original text of the Fifth Amendment

What Is Double Jeopardy

Double Jeopardy is a legal principle by which an individual cannot be prosecuted for the same crime more than once. In the United States, protection from double jeopardy is found in the Fifth Amendment, which states, “… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Because our criminal justice system protects against being tried twice for the same crime, once a person is found “not guilty” they cannot be then found guilty later. When a jury returns a not guilty verdict, that verdict is final.

The only real exception to the double jeopardy clause comes from the American federalist system. Multiple jurisdictions can try the same person for the same crime, i.e. the federal government and a state could have two separate trials for one murder.

Why Do We Have Double Jeopardy?

Ensuring that a defendant can only be put in jeopardy once strengthens the fairness and legitimacy of the legal system and protects personal liberty. The state cannot weaponize prosecution by trying innocent civilians over and over again. It cannot subject someone to the expense and anxiety of repeated charges.

Furthermore, guaranteeing the finality of acquittals is fundamentally important to the criminal justice system. When the power of justice is given to juries, the juries must always have the final say when it comes to matters of life and death.

Double jeopardy only applies to acquittals because the system is designed to prevent false convictions. The burden of proof is on the prosecution and the defendant is granted an appeal process.

The History of Double Jeopardy

The idea of protecting against being charged twice with the same crime dates back to Ancient Rome, which had a concept called ne bis in idem, which translates to “not twice for the same.”

The American version of Double Jeopardy has its roots in English common law and was codified in the Fifth Amendment, which was ratified in 1791 as part of the Bill of Rights.

Top 6 Double Jeopardy Cases

Below are a few selected cases that shaped and solidified the doctrine of double jeopardy in the United States.

  1. Benton v. Maryland (1968)
  2. United States v. Lanza (1922)
  3. Arizona v. Washington (1978)
  4. Kepner v. United States (1904)
  5. United States v. Felix (1992)
  6. Blockburger v. United States (1931)

Can the Prosecution Appeal in a Criminal Case?

In nearly every circumstance, the prosecution cannot appeal in a criminal case. If the jury returns an acquittal, the defendant is protected by the Double Jeopardy clause and the prosecution cannot appeal. If the jury returns a conviction, the defendant may appeal, but the prosecution usually has no reason to.

Even if the trial seemed unfair, the prosecution cannot appeal. Even in cases where the accused was obviously guilty, such as when the jury engages in jury nullification to effectively neutralize a law, the prosecution cannot appeal. No matter what.

There are only two real exceptions to this principle, besides the “dual sovereignty” intricacy raised by the federalist system.

The first exception occurs if the defendant had bribed the judge or jury, because he was never in jeopardy, as in the case of Harry Aleman.

The second exception occurs if the defendant is subject to military jurisdiction. An acquittal in a civilian court does not prevent trial in a court-martial.

Ultimately, though, the Double Jeopardy Clause is intended to prevent retrial after acquittal. Over time, the Supreme Court has interpreted and tailored the meaning of the Clause, but its core principle remains the same. No American can be tried twice for the same crime in the same jurisdiction. This clause reigns in the power of the state and protects everyday, innocent American citizens from prosecutorial abuse.

The prosecution cannot appeal in a criminal case.