Double Jeopardy

Double jeopardy is the rule that says the government does not get a second shot at you for the same crime. If you are acquitted at trial, the prosecution cannot retry you. If you are convicted, you cannot be charged with the same offense again. The protection comes from the Constitution and is one of the oldest principles in American criminal law.

How Double Jeopardy Works in California

The double jeopardy protection comes from the Fifth Amendment to the U.S. Constitution and Article I, Section 15 of the California Constitution. In California, it is codified in Penal Code § 687, which states that no person can be subjected to a second prosecution for a public offense for which they have already been prosecuted and convicted or acquitted. The protection attaches at a specific moment: in a jury trial, when the jury is sworn; in a bench trial, when the first witness is sworn.

Three core protections flow from double jeopardy in California: protection against a second prosecution after acquittal, protection against a second prosecution after conviction, and protection against multiple punishments for the same offense. The “same offense” question is the most heavily litigated. Under the Blockburger test, two charges are not the same offense if each requires proof of an element the other does not. California also has an important state-law overlay in Kellett v. Superior Court, which generally requires that all charges arising from the same conduct be tried together, with limited exceptions.

There are real and important exceptions. Under the dual sovereignty doctrine, both California and the federal government can prosecute the same conduct because they are separate sovereigns — a person acquitted in state court can sometimes still be charged federally, and vice versa. A mistrial declared because of a hung jury also does not bar retrial, since jeopardy is not considered to have terminated. The same is true for many dismissals where the case ends before jeopardy attaches at all.

California also has Penal Code § 654, which is sometimes confused with double jeopardy but is its own protection. Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. It does not bar prosecution under multiple statutes, but it limits the sentencing court’s ability to impose consecutive punishment. This is a routine issue in California felony sentencing and an important defense tool.

Why Double Jeopardy Matters to Your Defense

Double jeopardy is one of the most powerful protections a defendant has — but it requires careful, technical advocacy to invoke correctly. Whether jeopardy has attached, whether two offenses are “the same,” whether a mistrial was declared with manifest necessity, and whether dual sovereignty applies are all questions that turn on specific facts and case law. A criminal defense attorney who recognizes these issues early can sometimes block a second prosecution before it even begins.

Section 654 issues come up in nearly every multi-count California felony case. When charges arise from a single course of conduct — for example, robbery and assault committed in one continuous act — § 654 may require the court to stay the sentence on one of the counts. This can mean years of difference in the actual time served, and it depends on whether defense counsel raises and litigates the issue properly at sentencing.

Double jeopardy also comes into play after mistrials and reversed convictions. Some reversals — like a finding of insufficient evidence on appeal — bar retrial entirely under double jeopardy. Others, like reversals based on trial error, do not. Knowing the difference, and recognizing when double jeopardy can be raised as a defense to retrial, is the kind of careful work that defines effective California criminal defense.

Related Legal Terms

Double jeopardy connects to acquittal, the role of a jury at voir dire, what happens with a hung jury, and post-conviction relief through habeas corpus or appeal. These constitutional protections run through every part of our criminal defense and federal defense work across Greater Los Angeles.

Facing Charges Where This Applies?

If you have already faced charges for an event and the government is coming back for a second round — or if you are facing multiple counts for what feels like one act — double jeopardy and § 654 may be central to your defense. Attorney Chris Nalchadjian offers free, confidential consultations 24/7. Call KN Law Firm at (888) 950-0011.