Right to be Free of Double Jeopardy

This page includes a writing template for analyzing this topic and usage notes to guide its application. In general, the template is designed to serve as a starting point for your analysis. It should be adapted to fit the specific facts of your case and your professor’s preferences.

Writing Template

Issue

I: The issue is whether the defendant’s right to be free of double jeopardy for the same offense is at risk of being violated.

Analysis

R: A criminal defendant is protected from double jeopardy under the Fifth Amendment, which prohibits prosecution for the same offense after acquittal or conviction, and multiple punishments for the same offense. To establish a violation of double jeopardy, the defendant must demonstrate that (1) jeopardy attached in the prior proceeding, (2) the present charges are for the same offense as the previous charges, and (3) jeopardy terminated in the previous trial.

1. Jeopardy must have attached to the previous proceeding

R: Jeopardy attaches when the trial proceeds to a stage where the defendant is legally at risk of conviction. Specifically, jeopardy attaches when (1) in a jury trial, the jury is empaneled and sworn in, or (2) in a bench trial, the first witness is sworn in.

A: Here, [apply rule to facts].

C: Therefore, jeopardy [attached/did not attach] to the previous proceeding.

2. The present charges must be for the same offense

R: The defendant must prove that the present charges are for the same offense as the previous proceeding. Under Blockburger, offenses are considered the same if neither offense requires proof of an element that the other does not. Thus, if each offense contains a unique element not present in the other, the offenses are not the same. Additionally, offenses against different victims are generally considered separate offenses.

A: Here, [apply rule to facts].

C: Therefore, the present charges [are/are not] for the same offense as the previous proceeding.

a. Multiple Sovereigns Exception

R: Under the dual sovereignty doctrine, different sovereigns—such as a state government and the federal government—may prosecute a defendant for the same conduct without violating the prohibition on double jeopardy. This applies to cases where the same act violates the laws of different jurisdictions (e.g., two different states, or the federal government and a state).

A: Here, [apply rule to facts].

C: Therefore, multiple sovereigns exception [applies/does not apply].

b. Multiple Offenses by Statute Exception

R: Under certain statutory schemes, a defendant may be prosecuted for both the greater crime and any lesser-included offenses based on the same conduct if the legislature intended for such multiple punishments.

A: Here, [apply rule to facts].

C: Therefore, multiple offenses by statute exception [applies/does not apply].

3. Jeopardy must have terminated in the previous proceeding

R: Jeopardy must have terminated in the previous proceeding to invoke double jeopardy protections. Jeopardy ends when (1) the defendant is acquitted, (2) the defendant is convicted and either sentencing or appeals have concluded, or (3) the case is dismissed or otherwise resolved in the defendant’s favor (e.g., a grant of demurrer or dismissal).

A: Here, [apply rule to facts].

C: Therefore, jeopardy [ended/did not end] in the previous trial.

Conclusion

C: Therefore, since the defendant [has/has not] established all elements of double jeopardy, the defendant’s right to be free of double jeopardy for the same offense [is/is not] at risk of being violated.

Usage Notes

JurisJotter templates synthesize legal principles into a practical format that supports the development of well-structured, point-rich analyses in a timed exam.

The template features (1) headers identifying the overall issue, analysis, and conclusion. If the analysis begins with an umbrella rule that identifies elements, factors, or steps of the analysis, it will be followed by subheaders that signpost the analysis of each component.

The template also features (2) IRAC labels at the beginning of each paragraph. These headers and labels are included for educational purposes, offering guidance on structuring your analysis. Your usage of the headers is optional but can be helpful to readers. We advise against including the IRAC labels in submitted work.

The templates serve as a general guide for writing and should be adapted to align with (1) your specific factual circumstances and (2) your professor’s preferences, particularly if your professor provides explicit formulations of rules or analyses. For example, you may add or subtract an element or modify its language. Regardless of whether your professor provides explicit formulations, (3) this template will assist you in crafting point-rich analyses.

Please note that these templates are writing aids and not finished products. They are efficiently designed for exam essays to demonstrate conceptual understanding; thus, they are not comprehensive outlines with historical context or dicta.

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