The common understanding of the 5th Amendment's prohibition on being tried twice for the same offense is that no trial can be held which would put a person in a risk of loss of liberty if they have already been tried for that even.

It's been suggested, in comments to an answer to another question on this site, that it is still possible to try someone in a state court even after a Federal trial has started and has been resolved. The comment references this claim, by a former state prosecutor, to support their argument.

I am having trouble reconciling this with the following facts:

  • the 5th amendment does not mention that it only applies to crimes "against the United States", which is the language that is usually used to indicate that its application would be limited to the Federal jurisdiction.
  • the 5th amendment's double jeopardy clause has been incorporated into protections which states must afford their citizens. So it appears that its jurisdiction is both Federal and State.

Other than "it's just federalism" (which is obviously not absolute) what is the justification for this, if it's true?

More specifically, what is the origin of such a legal theory? Is there a case precedent which established this understanding or has this simply been this way and has gone unchallenged?

  • 3
    Does this answer your question? Double jeopardy
    – user4657
    Commented Sep 15, 2021 at 8:30
  • @Nij not even a little bit? I've stipulated that question's answers in this question. The last paragraph should make it clear that this is a different question. The inquiry is about the origin of imposing such meaning on the wording of the 5th amendment.
    – grovkin
    Commented Sep 15, 2021 at 11:26
  • For the record, it's not strictly true that you can't be tried twice for the same event, even by a single government, since an "event" might possibly entail several crimes, some of which share elements. See this excellent answer on the Blockburger test for all the gory details. Commented Sep 15, 2021 at 11:59
  • Double jeopardy does apply to both the federal and state governments. The United States can't try a person twice for the same crime; neither can Alabama; neither can Alaska, etc. But that doesn't stop them each from trying the person once. Commented Sep 15, 2021 at 12:58
  • No body is "tried for an event". They are tried because they are charged with a crime. In general, federal and state courts deal with different types of crime, so the question does not arise.
    – alephzero
    Commented Sep 15, 2021 at 19:17

1 Answer 1


Does double jeopardy prohibit prosecution, for the same event, in both federal and state court?


Key precedents on the question are US v. Lanza (1922) and Abbate v. US (1959). From Lanza:

The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that state is not a conviction of the different offense against the United States, and so is not double jeopardy.

From Wikipedia's article on Abbate:

Abbate asked that the Court overrule its prior decision, which the Court declined to do. The Court reasoned that overruling Lanza would result in serious and undesirable consequences. Particularly, the state conviction here resulted in only three months' imprisonment, while the federal conviction made up to five years of imprisonment available. The Court deemed this potential disparity to be problematic. The only way to ensure that federal law enforcement interests would be vindicated under such a regime would be to displace state power to prosecute actions that also constitute federal crimes, which would be a massive shift in the balance of criminal power as between the states and the federal government.

In a comment, you raise a question about the last sentence:

"The only way to ensure that federal law enforcement interests would be vindicated under such a regime would be to displace state power to prosecute actions that also constitute federal crimes," seems to state that not displacing state power to prosecute, under such circumstances, would keep the law enforcement interests un-vindicated (which would mean unjustified). So the only justified thing to do would be to try under the Federal law and to not try under the state law.

"Vindicate" here does not mean justify but rather maintain or substantiate. The point is that if double jeopardy protected against prosecution by the federal government for a crime that has already been charged under state law, then states could effectively neuter federal crimes with which they disagreed by establishing a crime with identical elements and a token punishment. Another way of avoiding this outcome without permitting separate state and federal prosecutions for the same crime would be to prohibit state prosecutions altogether for acts that are also federal crimes. In other words, this says that the court found that the prohibition against double jeopardy allows these separate prosecutions because prohibiting them would require a "massive shift" in the responsibility for enforcing criminal law away from the states and toward the federal government.

(Of course, this works both ways; if double jeopardy applied across sovereigns then the federal government could also neuter state laws. More generally, the current approach to double jeopardy may be seen as maintaining the balance of power between the states and the federal government, more than as protecting the interests of one side over those of the other.)

  • I am sorry, but the selective clipping in the 3rd quote is odd to me. The quote, as clipped, seems to provide a justification for a conclusion opposite from the one reached. Can you, please, either elaborate or quote more parts which would demonstrate the reasons for the conclusion?
    – grovkin
    Commented Sep 15, 2021 at 7:21
  • 1
    The 2nd quote is also odd. "2 different offenses" doesn't justify 2 different trials. Otherwise, the person could be tried over and over for each offense in the same state. So while it may be true, it doesn't seem like a good enough reason given the double jeopardy. Murder 1 didn't work? Let's try him for murder 2, etc, etc, etc. I am not saying the court is wrong. But it does seem reasonable that the court must have given a more plausible reason what than this quote clipping seems to suggest.
    – grovkin
    Commented Sep 15, 2021 at 7:24
  • 3
    @grovkin: Read the Abbate decision. It has a historical survey of past cases on the question, including early ones that raise exactly the Supremacy Clause argument you make. For instance, Fox v. Ohio. Commented Sep 15, 2021 at 13:04
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    The answer, as I understand it, is this: the Supremacy Clause applies when state and federal law conflict. But suppose the US and Arkansas both have laws criminalizing a particular act. If both sovereigns are allowed to prosecute under their own laws, as the Supreme Court has held, then there is not actually any conflict between the two laws, and they can coexist perfectly well. Therefore the Supremacy Clause does not apply. Commented Sep 15, 2021 at 13:14
  • 1
    @grovkin That's a good point, but it's important to keep in mind alongside it that the federal government is restricted to enacting laws that relate to the authority granted to it under the constitution. This is why the federal criminal code does not establish a generally applicable crime of murder, for example. Federal murder statutes apply where there is some federal interest: the victim is a federal officer or employee, or is a diplomat or other "internationally protected person," or the crime takes place within federal jurisdiction but outside the jurisdiction of a state, etc.
    – phoog
    Commented Sep 16, 2021 at 12:16

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