⚡ 10-Second Rule
Once your trial truly starts, the same government can't try you again for the same crime.
🧒 ELI-10 Scene
At the county fair, Priya enters the pie contest. The judges taste her pie and announce, "Not a winner." Priya walks away, done. The head judge can't chase her down yelling, "Bake it again — we want another taste!" One entry, one verdict, finished. But if the oven died mid-bake through nobody's scheming, Priya bakes again tomorrow. And the big fair across the state line answers to a whole different rulebook and judges. Priya's loss here doesn't use up her entry there.
⚖️ Actual Rule
The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." Jeopardy attaches when the jury is sworn in a jury trial, and when the first witness is sworn in a bench trial (Crist v. Bretz, 437 U.S. 28 (1978)). Whether two crimes are the "same offense" is governed by Blockburger v. United States, 284 U.S. 299, 304 (1932): "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Separate sovereigns — a state and the federal government, or two different states — may each prosecute the same conduct (reaffirmed in Gamble v. United States, 587 U.S. 678 (2019)); a state and its municipalities are one sovereign. Retrial is permitted after a mistrial declared out of manifest necessity, including a hung jury; after a mistrial granted at the defendant's request, unless the prosecution goaded the defendant into moving for it (Oregon v. Kennedy, 456 U.S. 667 (1982)); and after a conviction is reversed on appeal, unless the reversal rests on insufficiency of the evidence, which counts as an acquittal (Burks v. United States, 437 U.S. 1 (1978)). The clause bars only successive criminal punishments; a civil penalty may follow a criminal case unless the civil sanction is so punitive in purpose or effect as to be criminal in substance (Hudson v. United States, 522 U.S. 93 (1997)).
[NJ-VARIANT: flagged for future Eli Explains NJ Law module]
ELI-10 translation: after the real contest starts, one government gets one shot at one crime.
🔍 Ask These Questions
- Did jeopardy attach — jury sworn, or first witness sworn before a judge alone? (Did the contest truly start, not just get scheduled?)
- Is it the same offense under Blockburger — does each crime need a fact the other doesn't? (Two crimes with different ingredient lists are two different crimes.)
- Is it the same sovereign — same government, not a state plus the feds? (Two different fairs can each judge the same pie.)
- If there was a mistrial, was it truly necessary, like a hung jury? (An oven breakdown nobody caused means a fair re-bake.)
- If the defendant appealed and won, was the reversal for trial error or for weak evidence? (A do-over for a broken rule is fine; weak evidence means game over.)
- Is the second penalty civil, not criminal? (A cleanup bill after a punishment usually isn't a second punishment.)
⚠️ Bar Trap
Exam language: Examiners describe a hung jury or a defense-requested mistrial and bait you into barring retrial on double jeopardy grounds. The mirror trap: a lesser included offense fails Blockburger — it requires no fact beyond the greater offense — so conviction of one generally bars later prosecution for the other by the same sovereign.
ELI-10: A jury that can't decide didn't decide — so there's no result to protect, and a redo is fine. But a small crime hiding inside a big crime is the same crime.
🧪 Question
Marisol was tried in state court for robbery of a jewelry store. After three days of deliberation, the jury reported it was hopelessly deadlocked, and the judge, finding no alternative, declared a mistrial over Marisol's objection. The state now seeks to retry Marisol for the same robbery. Separately, federal prosecutors have indicted Marisol for the same incident under a federal robbery statute. Marisol moves to dismiss both the state retrial and the federal indictment on double jeopardy grounds.
How should the courts rule?
(A) Dismiss both, because jeopardy attached when the first jury was sworn. (B) Allow both, because the hung-jury mistrial was a manifest necessity and the federal government is a separate sovereign. (C) Allow the state retrial, but dismiss the federal indictment because it charges the same conduct. (D) Dismiss the state retrial, but allow the federal indictment because sovereigns are separate.
Answer: (B). A genuinely deadlocked jury is the classic manifest necessity permitting retrial by the same sovereign, and under the dual sovereignty doctrine the federal government may prosecute the same conduct regardless of the state proceedings.
💡 Why the Wrong Answers Are Wrong
- (A) treats attachment as an absolute bar; attachment starts the protection, but manifest-necessity mistrials and separate sovereigns still permit further prosecution.
- (C) applies a same-conduct test to sovereignty; the dual sovereignty doctrine turns on who prosecutes, not on whether the conduct overlaps.
- (D) gets sovereignty right but wrongly bars the state; a hung jury produces no acquittal, so the state may retry.
- ELI-10: The misconception is thinking any first trial uses up the one shot. A tie isn't a result, and two governments hold two separate shots.
