Definition
Twice in jeopardy is a constitutional protection against a second prosecution or punishment for the same offense after a person has already been placed at risk of conviction in a prior proceeding. The phrase is the older, more literal rendering of what modern law calls the double jeopardy protection, drawn directly from the Fifth Amendment to the U.S. Constitution, which provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." Parallel provisions appear in most state constitutions, though the precise language varies.
The protection operates in three principal modes: (1) it bars a second prosecution for the same offense after acquittal; (2) it bars a second prosecution for the same offense after conviction; and (3) it bars multiple punishments for the same offense. The threshold question in any double jeopardy analysis is when jeopardy attaches — that is, at what procedural moment the constitutional protection first becomes operative.
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Common Confusion
TWICE IN JEOPARDY vs. ONCE IN JEOPARDY: Historical legal dictionaries, including Black's and Burrill's, treated these as companion terms directing researchers to the same conceptual cluster. "Once in jeopardy" (also rendered autrefois acquit and autrefois convict in the common law plea tradition) is the plea or defense raised to assert the protection — it is the procedural instrument. "Twice in jeopardy" describes the constitutional condition the protection is designed to prevent. Researchers encountering either phrase in historical sources should treat them as part of the same doctrine but recognize they may appear in different procedural contexts.
TWICE IN JEOPARDY vs. JEOPARDY ASSESSMENT: In tax law, "jeopardy" has a wholly distinct meaning — an IRS authority to make an accelerated assessment when collection is at risk. The overlap in vocabulary has no substantive connection to the criminal law protection. See Jeopardy Assessments (The Law Mind Tax Encyclopedia).
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Core Elements
The constitutional protection against being twice in jeopardy requires analysis along several axes:
SAME OFFENSE: Courts apply the Blockburger test (from Blockburger v. United States, 284 U.S. 299 (1932)) to determine whether two charged offenses are the "same" for double jeopardy purposes. If each offense requires proof of an element the other does not, they are considered distinct offenses and sequential prosecution is permitted.
ATTACHMENT OF JEOPARDY: In jury trials, jeopardy attaches when the jury is sworn. In bench trials, it attaches when the first witness is sworn. Before attachment, the protection offers no bar to prosecution. Dismissal or mistrial before attachment does not trigger double jeopardy.
TERMINATION: The protection against retrial is only activated when the prior proceeding terminated in a way that counts — acquittal, conviction, or certain mistrials declared without manifest necessity. A mistrial declared for manifest necessity (such as a hung jury) generally does not bar retrial.
DUAL SOVEREIGNTY: The protection does not bar successive prosecutions by separate sovereigns — federal and state governments, or two different states — for the same conduct. This is the dual sovereignty doctrine. See Double Jeopardy — Dual Sovereignty Doctrine (The Law Mind Criminal Law Encyclopedia).
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Why It Matters in Research
Researchers working in historical sources will find "twice in jeopardy" used as the primary heading where modern sources use "double jeopardy." The doctrinal content is the same, but the terminology shifted across the twentieth century. When searching nineteenth- and early twentieth-century digests, case reporters, and treatises, the phrase "twice put in jeopardy" is the operative search term, not "double jeopardy."
Rapalje & Lawrence is particularly useful here: it signals that the constitutional phrase was actively litigated in Arkansas, California, and Kentucky in the nineteenth century, and that each state constitution had its own formulation. Researchers analyzing state constitutional history should not assume the federal Fifth Amendment standard governed — state courts frequently interpreted their own provisions independently, and those interpretations sometimes diverged from federal doctrine.
The reference in Burrill's Law Dictionary to Kent's Commentaries and Wharton's American Criminal Law points researchers to two foundational treatise discussions. Wharton's section 573 et seq. in particular provides extended analysis of the common law background of the plea, tracing it through autrefois acquit and autrefois convict. These treatise sources predate the incorporation of the double jeopardy clause against the states (not accomplished until Benton v. Maryland, 395 U.S. 784 (1969)) and should be read with that gap in mind.
Historical sources will not reflect modern attachment doctrine, the Blockburger same-elements test, or the full articulation of the dual sovereignty exception as it now stands. Researchers working on federal constitutional development will find the historical dictionaries useful as entry points but will need to trace doctrine forward through case law.
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Historical Dictionary Support
The historical dictionaries for this term are uniformly cross-referential rather than substantive. Black's (both editions), Bouvier's, Rapalje & Lawrence, and Burrill's all treat "twice in jeopardy" as a heading that redirects to JEOPARDY and ONCE IN JEOPARDY. This is itself informative: it confirms that nineteenth-century legal lexicography organized the doctrine under those parent entries rather than under the constitutional phrase. Burrill's adds the most specificity, citing Kent's Commentaries and Wharton's as the leading treatise authorities — a useful research trail for anyone working in primary sources from that period. Rapalje & Lawrence is the only source among the five that provides actual case references (Arkansas, California, and Kentucky decisions), making it the most practically useful for historical state-court research.
None of the historical dictionaries address jeopardy attachment doctrine in its modern form, the Blockburger test, or the incorporation question. Researchers should treat these sources as period-accurate but structurally incomplete relative to contemporary doctrine.
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Jurisdictional Note
Most states have constitutional double jeopardy provisions, and some state courts have interpreted those provisions to afford broader protection than the federal Fifth Amendment floor. State constitutional language varies — some provisions say "twice put in jeopardy," others use different formulations — and historical state case law must be read against the specific text in force at the time.
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Encyclopedia Cross-Reference
Double Jeopardy — Attachment and Scope (The Law Mind Criminal Law Encyclopedia)
Double Jeopardy — Dual Sovereignty Doctrine (The Law Mind Criminal Law Encyclopedia)
Jeopardy Assessments (The Law Mind Tax Encyclopedia) — for the unrelated tax law usage
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