United States Constitution

Importantly, the entire guarantee only applies within one court system. Were the United States to be made of one system, this clause would apply throughout the country and in any court. However, the United States is exactly that: an alliance of sorts between several states, or sovereigns. The federal government is one court system, and the states are each their own individual court systems. Therefore, even if a person could not be prosecuted a second time in federal court after having already stood trial in another federal court, he could be prosecuted in state court – and vice versa. In a stark example, in United States v. Lara (2004), the Supreme Court held that Native American tribal courts were also separate sovereigns. Therefore, double jeopardy didn’t apply when the defendant was charged in federal court after already having been charged in tribal court.

However, if a defendant is put on trial in one court system, he or she may not be subjected to another trial within that same system if the underlying alleged crime is the same. For example, in Ashe v. Swenson (1970), the Supreme Court examined a prosecution against someone accused of robbing someone at a poker game. However, as it happened, the accused was already acquitted for the robbery with regard to a different person present at that exact same poker game. In other words, a court had already concluded that this defendant was not the thief. It didn’t matter that the victim was different in the second case. The issue had already been litigated.

Still, additional exceptions do exist to the double jeopardy doctrine. For example, the text of the amendment is explicit that what may not happen twice is a defendant being twice subjected to a threat against “life and limb.” Obviously, not all trials threaten life and limb. Criminal trials – in which the accused could go to jail or even be given the death penalty – falls under this umbrella. However, in civil trials, such “punishments” are not at stake. In general, civil trials are between two private parties, and do not involve a person being accused of a crime. Therefore, as a general rule, a defendant on trial for some crime may later be sued in civil court for the same action. Similarly, there do exist some government-related consequences that also do not threaten “life and limb.” In United States v. Ursery (1996), for example, the Supreme Court held that the government could prosecute someone for producing marijuana – even after initiating a proceeding against the defendant to seize his land. The land seizure did not count as a threat to life and limb. Therefore, it was not unconstitutional for him to be later prosecuted. There was no double jeopardy.

In general, the right against self-incrimination is practiced in a criminal setting. In other words, a prosecutor accuses a defendant of a crime and the defendant refuses to testify against himself in his trial. Importantly, this refusal may not be used against the defendant in court. Meaning, the prosecutor or judge is not allowed to tell the jury that the defendant’s refusal to testify is at all an inference of guilt. For example, in Griffin v. California (1965), the defendant had been accused and convicted of murder. But at the trial, the court allowed the prosecutor to suggest that the defendant’s refusal to testify was indicative of his guilt. The Supreme Court, however, reversed the conviction – stating that this inference was a violation of the defendant’s 5th Amendment rights. Aa refusal to testify is not only unable to be used to determine guilt, but in Mitchell v. United States (1999), the Court held that it couldn’t even be used – after already determining guilt – to aid in the determination of the sentence.

However, the right against self-incrimination doesn’t only exist in criminal courts. A party in a civil lawsuit may also refuse to testify to his or her own detriment. As early as 1924, in McCarthy v. Arndstein, the Supreme Court has held that the constitutional privilege against self-incrimination applied to civil cases as well. However, the privilege does not extend as far as in criminal cases. The person invoking the privilege in a civil case may be subject to inferences based on his or her refusal to testify.

Also, obviously, the privilege has been further qualified over the years. For example, in United States v. White (1944), the Supreme Court held that it didn’t apply to groups and organizations – and only to individuals. In the famous Miranda v. Arizona (1966), the Court held that the privilege was not limited to the courtroom – but applied to when a police officer takes someone into custody as well, giving rise to “the right to remain silent.”