Double Jeopardy Protections in Kentucky
The Fifth Amendment to the United States Constitution and Section 13 of the Kentucky Constitution protect every person from being tried twice for the same offense. This fundamental principle, known as the prohibition against double jeopardy, ensures that once you have been acquitted or convicted of a crime, the government cannot subject you to a second prosecution for the same conduct. At Clark + Harris, we protect our clients’ double jeopardy rights in Lexington, Louisville, and throughout Kentucky, and we raise double jeopardy defenses whenever they apply.
What Double Jeopardy Protects Against
The double jeopardy clause provides three distinct protections: protection against a second prosecution for the same offense after acquittal, protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense. These protections apply in both state and federal court and are triggered once jeopardy attaches — in a jury trial, when the jury is sworn; in a bench trial, when the first witness is sworn.
Double jeopardy does not prevent all subsequent prosecutions related to the same conduct. Under the separate sovereigns doctrine, both the federal government and the state of Kentucky can prosecute a defendant for the same conduct if it violates both federal and state law. This means that an acquittal in Fayette Circuit Court does not prevent a subsequent federal prosecution in the Eastern District of Kentucky, and vice versa. This dual sovereignty principle was reaffirmed by the U.S. Supreme Court in Gamble v. United States (2019).
The Blockburger Test
Courts use the Blockburger test to determine whether two charges constitute the same offense for double jeopardy purposes. Under Blockburger, two offenses are the same for double jeopardy purposes unless each offense requires proof of an element that the other does not. For example, robbery and murder arising from the same incident are different offenses because each requires proof of an element the other does not — robbery requires theft, while murder requires causing death. A defendant can be prosecuted for both without violating double jeopardy.
However, if two charges are truly the same offense under Blockburger — for example, being charged with both assault in the fourth degree and harassment based on exactly the same conduct — double jeopardy may prohibit prosecution for both. At Clark + Harris, we analyze the specific charges against our clients to identify double jeopardy issues and raise them through pretrial motions when applicable.
Double Jeopardy in Kentucky Practice
Double jeopardy issues arise in Kentucky criminal practice in several common contexts. Retrials after mistrials may implicate double jeopardy depending on the reason for the mistrial. If the defendant moved for a mistrial, double jeopardy generally does not bar retrial. If the prosecution caused the mistrial through misconduct intended to provoke a mistrial motion, double jeopardy may bar retrial. Sentence enhancements after successful appeal can raise double jeopardy concerns if the enhanced sentence constitutes additional punishment for the same offense.
In Lexington and Louisville, we see double jeopardy issues most frequently in cases involving multiple charges arising from the same incident, cases where the prosecution dismisses charges and later refiles them, and cases involving both state and federal charges for the same conduct.
Raising Double Jeopardy Defenses
Double jeopardy is an affirmative defense that must be raised by the defendant. At Clark + Harris, we review every case for potential double jeopardy issues and raise them at the earliest opportunity through pretrial motions. A successful double jeopardy motion results in dismissal of the charges with prejudice, meaning they cannot be refiled. This is one of the most powerful defenses available in criminal law.
Contact a Kentucky Criminal Defense Attorney
If you believe your double jeopardy rights may have been violated, contact Clark + Harris at 859-474-0001. We serve clients in Lexington, Louisville, and throughout Kentucky.
Related Resources
If this information applied to your situation, the following Clark + Harris guides may also be helpful:
- Self-Defense Laws in Kentucky
- Your Right to a Speedy Trial in Kentucky
- Cruel and Unusual Punishment: Eighth Amendment Issues in Kentucky
- Right to Counsel in Kentucky: When You Are Entitled to a Lawyer
- Kentucky Bail Reform: Recent Changes to Pretrial Release
- Police Misconduct and Excessive Force in Kentucky
- Prosecutorial Misconduct in Kentucky Criminal Cases
Legal Resources
The U.S. Constitution and its amendments are available at the Constitution Annotated from the Library of Congress. For Kentucky constitutional provisions, see the Kentucky Constitution. Contact Clark + Harris PLLC at (859) 474-0001 to protect your constitutional rights.