The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Grand Juries, Double Jeopardy, and Self-Incrimination

Historical Background

Double Jeopardy

At the time the Constitution was ratified, almost none of the state constitutions included explicit protections against double jeopardy. Most state courts, however, would have recognized the principle as a simple matter of common law. English common law had developed its own version of a double jeopardy clause, and the principle goes back even further—to ancient Greece and Rome.

The principle of double jeopardy was so well established at the time of the American Founding that this provision sparked very little debate when it was considered in the House. The only real objection to the clause was that it might be misconstrued to the detriment of the prisoner. The principle of double jeopardy, after all, was meant as a limitation on the prosecutor. But there might be instances where it could be used against a prisoner who might be wrongfully convicted. 

After very little debate, however, the House decided by a large majority to retain this essential clause, even at the risk of misinterpretation. In the words of Samuel Livermore, “it is the universal practice in Great-Britain, and in this country, that persons shall not be brought to a second trial for the same offence.”

In Benton v. Maryland (1969), the United States Supreme Court decided that “the double jeopardy prohibition of the 5th Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the 14th Amendment.”