Under the Fifth Amendment’s Double Jeopardy Clause, the government generally gets one shot at prosecuting you for a given criminal offense, so the short answer to how many times you can be tried for the same crime is once. The real answer is more layered. A hung jury, a mistrial you asked for, or a conviction you successfully appeal on trial-error grounds can all send you back for a second trial. A single act can also produce more than one “offense,” and the same conduct can sometimes be prosecuted by both a state and the federal government.
The One-Trial Rule and When It Locks In
The Fifth Amendment says no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”1Library of Congress. U.S. Constitution – Fifth Amendment The clause originally bound only federal courts. The Supreme Court extended it to the states through the Fourteenth Amendment in Benton v. Maryland (1969), so every criminal court in the country is now covered.
The protection has three pieces. The government cannot retry you after an acquittal. It cannot retry you after a conviction that stands. And in a single proceeding, it cannot stack multiple punishments for the same offense unless the legislature clearly said it could.
None of that applies until jeopardy “attaches,” meaning the case has moved far enough that you are genuinely at risk of a verdict. In a jury trial that happens when the jury is sworn. In a bench trial it happens when the first witness begins testifying. With a plea, it happens when the court accepts the plea. Juvenile adjudications attach when the court begins hearing evidence.2Legal Information Institute. Breed v. Jones, 421 U.S. 519 (1975) Anything before those moments — an arrest, an indictment, a preliminary hearing — carries no double jeopardy protection, and the government can drop and refile charges freely.
When a Second Trial Is Allowed
Several situations end a criminal case without producing either an acquittal or a final conviction, and each leaves the door open for the government to try again.
Hung Juries
When a jury cannot reach a unanimous verdict, the judge declares a mistrial. Because no verdict was reached, you were neither acquitted nor convicted, and the government can start over with a new jury. The Supreme Court laid this down in United States v. Perez in 1824, holding that a jury’s failure to agree “constitutes no legal bar to a future trial.”3Justia U.S. Supreme Court. United States v. Perez, 22 U.S. 579 (1824) There is no constitutional cap on how many times the government can retry after successive hung juries, though prosecutors often reassess after one or two.
Mistrials You Requested
If you ask for a mistrial, usually because something has tainted the proceedings, you generally give up your double jeopardy protection and can be retried. The rationale is that you chose to abort the trial rather than see it through.4Legal Information Institute. Reprosecution After Mistrial
There is a narrow exception. If the prosecutor deliberately provoked the error to push you into asking for a mistrial, a retrial is barred. In Oregon v. Kennedy (1982) the Supreme Court set a strict intent standard: only conduct specifically “intended to goad the defendant into moving for a mistrial” triggers the protection.5Library of Congress. Oregon v. Kennedy, 456 U.S. 667 (1982) Recklessness or careless lawyering is not enough, and proving intentional sabotage is very difficult.
Successful Appeals
If you win an appeal, whether you can be retried depends on why the appellate court reversed.
When the reversal rests on a legal error at trial, such as a bad jury instruction, improperly admitted evidence, or prosecutorial misconduct, the government can retry you. The original conviction is treated as nullified.6Legal Information Institute. Reprosecution Following Conviction
When the reversal rests on insufficient evidence, retrial is barred. The Supreme Court drew that line in Burks v. United States (1978), reasoning that when an appellate court finds the prosecution failed to prove guilt beyond a reasonable doubt, letting the government try again would give it exactly what the clause forbids: another chance to muster evidence it did not have.7Legal Information Institute. Burks v. United States, 437 U.S. 1 (1978) The two kinds of reversals produce opposite outcomes, so the ground stated in the appellate opinion matters enormously.
When One Act Becomes Multiple Charges
A single incident often produces several charges, and each can be prosecuted in the same trial without violating double jeopardy. Courts use the Blockburger test, from a 1932 Supreme Court decision, to decide whether two charges are really the same offense. Two statutes describe different offenses if each requires proof of at least one fact the other does not.8Justia U.S. Supreme Court. Blockburger v. United States, 284 U.S. 299 (1932)
Someone who robs a bank at gunpoint might face charges for robbery and for illegal use of a firearm. Robbery requires proof of taking property; the firearm charge requires proof of using a weapon. Each requires something the other does not, so under Blockburger they are two offenses, and prosecuting both is fine.
State and Federal Cases for the Same Conduct
The biggest opening in double jeopardy protection is the dual sovereignty doctrine. The federal government and each state are treated as separate sovereigns with their own lawmaking authority, so a prosecution by one does not block a prosecution by the other for the same conduct. The Supreme Court reaffirmed this in Gamble v. United States (2019), where Alabama and the federal government both prosecuted the same defendant for possessing a firearm as a felon.9Legal Information Institute. Gamble v. United States (2019)
Each sovereign is enforcing its own body of law, so each prosecution is technically for a different offense even when the underlying conduct is identical. Two states are also separate sovereigns from each other, and tribal nations are separate sovereigns from the federal government, so tribal and federal prosecutions can both proceed on the same act.
Territories are the boundary. In Puerto Rico v. Sanchez Valle (2016), the Court held that Puerto Rico derives its prosecutorial authority from Congress rather than from an independent source, so a federal case and a Puerto Rico case for the same conduct would violate double jeopardy.10Justia U.S. Supreme Court. Puerto Rico v. Sanchez Valle (2016) The same logic reaches other U.S. territories.
The Department of Justice narrows this in practice through the Petite Policy. Federal prosecutors are generally barred from bringing a case after a state prosecution based on the same acts unless there is a substantial federal interest, the prior prosecution left that interest clearly unvindicated, and the admissible evidence will probably sustain a conviction. Approval from a senior DOJ official is also required.11U.S. Department of Justice. Justice Manual 9-2.031 – Dual and Successive Prosecution Policy It is an internal policy, not a right a defendant can enforce in court, but it makes back-to-back prosecutions much less common than the Constitution alone would allow.
Acquittals Are Final
An acquittal is the strongest protection in American criminal law. Once a jury or judge returns a not-guilty verdict, the government cannot appeal it, cannot retry the charge, and cannot reopen the case on new evidence. That finality holds even when the acquittal looks like the wrong outcome.
It reaches beyond the charge itself. Under collateral estoppel, sometimes called issue preclusion, the clause bars the government from relitigating any factual issue the jury necessarily decided in your favor.12Legal Information Institute. Collateral Estoppel (Issue Preclusion) and Double Jeopardy The Supreme Court applied this in Ashe v. Swenson (1970): a defendant acquitted of robbing one poker player because the jury found insufficient proof he was one of the robbers could not then be charged with robbing another player at the same game, because the identification question had already been resolved.13Legal Information Institute. Ashe v. Swenson, 397 U.S. 436 (1970) The doctrine only reaches facts the jury actually decided, so if a verdict could have rested on multiple grounds, the protection may not attach to any single issue.
Civil Suits and Forfeiture After a Criminal Case
Double jeopardy is a criminal protection. Someone acquitted of a crime can still be sued in civil court by the victim or the victim’s family for damages arising from the same conduct. The two cases have different parties and different purposes, so they are not the same action. Civil plaintiffs also carry a lower burden, needing only to show their version is more likely true than not, so evidence that fell short of “beyond a reasonable doubt” in criminal court can still win a civil verdict.
The same principle covers civil asset forfeiture. In United States v. Ursery (1996) the Supreme Court held that civil forfeiture is not “punishment” for double jeopardy purposes, because it has historically been treated as a remedial action aimed at the property rather than a penalty aimed at the person.14Legal Information Institute. United States v. Ursery (1996) The government can pursue a criminal case and a civil forfeiture on the same underlying events without violating the clause.