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Criminal procedure

double jeopardy

The Double Jeopardy Clause in the Fifth Amendment to the United States Constitution prohibits any person from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause applies against both state and federal governments. See Benton v. Maryland, 395 U.S. 784 (1969).

But under the “dual-sovereignty doctrine” or “separate sovereigns doctrine” the prohibition on double jeopardy does not prevent dual prosecutions when the prosecutions are conducted by separate sovereigns (governments). For example, if a person engages in criminal conduct that constitutes a crime under both state and federal law—or that constitutes a crime in two different states—the person may be prosecuted by both sovereigns without violating the Double Jeopardy Clause. See Gamble v. United States, 139 S.Ct. 1960 (2019).

The dual-sovereignty doctrine is not an exception to the prohibition on double jeopardy—rather, it follows from the Fifth Amendment's text. The Double Jeopardy Clause protects individuals from being “twice put in jeopardy” “for the same offence.” As originally understood, an “offence” is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and two “offences.”

In Texas, as in all states, the Double Jeopardy Clause of the Fifth Amendment protects individuals from being tried twice for the same offense by the same sovereign. This means that a person cannot be prosecuted again for the same crime once they have been acquitted or convicted, or if they have faced jeopardy such as a jury being sworn in or a plea being accepted. However, under the dual-sovereignty doctrine, this protection does not extend across different sovereigns. Therefore, if a person's actions violate both Texas state law and federal law, they may face prosecution by both the state and federal governments without it being considered double jeopardy. This is because the state of Texas and the federal government are considered separate sovereigns, each with their own set of laws. The same principle applies if the conduct constitutes a crime in different states; each state may prosecute the individual separately. The U.S. Supreme Court reaffirmed this doctrine in the 2019 case of Gamble v. United States.

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