Van Wagner & Wood Home Page
Van Wagner & Wood Attorney Chris Van Wagner Attorney Tracey Wood
Madison WI   
Toll Free   

The Fifth Amendment provides that no person may be twice put in jeopardy of life or limb for the same offense.

Attorney Tracey Wood appealed a trial court conviction in which the defendant had been tried unfairly. The appellate court remanded the case back to the trial court for a fair hearing.

Repeatedly Voted Madison's Best Drug Crimes DefenseDrunk Driving OWI Defense AttorneysVery Serious Felony Charges (Murder, Sexual Assault, Drugs)Wisconsin State & Federal ChargesWhite Collar Crime DefenseWisconsin Attorneys - Criminal & DUI Defense


Double jeopardy means, simply, that a person cannot be twice tried for the same crime. The double jeopardy rule is imposed upon the states through the Due Process Clause.

Fifth Amendment, United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment's double jeopardy, privilege against self-incrimination, and just compensation for private land taken for public purpose rights are applicable to the states.

The Fifth Amendment constitutional rule protecting a person from being subject to "double jeopardy" is binding upon all states under the Due Process Clause. The double jeopardy rule applies to criminal cases. This means, simply, that once the state prosecutes a person for a crime, the state may not do so a second time if the defendant is found not guilty. Although there are limits on this principle, it is exceedingly rare for a person to be tried, found not guilty, and tried again for charges arising out of the same facts.

Jeopardy Attaches

A defendant's right to freedom from double jeopardy begins when jeopardy attaches. Jeopardy attaches in a jury trial when the jury is sworn. Jeopardy attaches in a judge trial (also called a bench trial or nonjury trial) when the first witness is sworn. If a defendant pleads to the crime charged (or to a lesser crime, as is often the case in a plea agreement), then jeopardy attaches when the court accepts the defendant's plea.

Same Offense

In order for the rule of double jeopardy to apply, the subsequent trial must be based on the exact same facts as the former trial. The trials must be for the same incidence of the crime. If a defendant is prosecuted for a crime in which he committed multiple incidences of the same crime, each incidence can be tried separately without double jeopardy. However, even if the incidences of the crime can be tried separately, if the defendant was already tried on a material fact of the crime and acquitted of that material fact, then in most cases, any subsequent trial is barred from prosecuting that material fact.

Two Or More Prosecutions

The Fifth Amendment does not protect a person from being tried by two or more separate governments. Thus, both the federal government and the state government are able to charge and prosecute one person for the same criminal act, which is often the case for drug related crimes. As well, two or more states can prosecute and try a person for the same criminal act.

A local government (municipal courts) is not separate from a state government, therefore double jeopardy would apply in a situation in which a person was prosecuted, tried, and acquitted by a local government. The double jeopardy rule would prevent the state government from subsequently prosecuting and trying that same person for that same crime.

Trial After Successful Appeal

An appeal will not bar a subsequent trial of the same crime if the defendant was not acquitted. Therefore, if a defendant is prosecuted and found guilty, and then successfully appeals the conviction (the appellate court reverses the conviction), the government is not barred from retrying the defendant for the crime, unless the government failed to introduce sufficient evidence at trial which then in turn became the grounds upon which the appellate court reversed the conviction.

Grand Jury Proceedings

Double jeopardy does not apply to grand jury proceedings. A person who is subpoenaed to, testifies before, and is acquitted of charges brought to the grand jury can be repeatedly retried by that same grand jury.

Related Topics:
Criminal Trial | WI Statute Ch 972 Criminal Trials | 972.07 Jeopardy