MBE Rules · Criminal Procedure
Double Jeopardy
5A — Blockburger / dual sovereignty
The rule
Jeopardy attaches when the jury is sworn (or first witness in a bench trial); offenses are the same unless each requires an element the other does not, retrial follows hung juries and defense appeals, and separate sovereigns may each prosecute.
In plain English
Double jeopardy is a legal protection that prevents a person from being tried twice for the same crime. Jeopardy attaches when a jury is sworn in or the first witness is called in a bench trial, and two offenses are considered the same unless each requires different elements.
Worked example
A defendant is tried for robbery, and the jury is sworn in. After deliberation, they cannot reach a verdict, resulting in a hung jury. The defendant can be retried for robbery without violating double jeopardy.
Memory hook
Once the jury is sworn, you can't be tried again for the same crime!
The trap
Exams may present scenarios where multiple charges seem similar, but students must carefully analyze whether each charge requires a unique element to avoid confusion.
How examiners test it
Questions often involve fact patterns with multiple charges or different jurisdictions, testing the candidate's understanding of when double jeopardy applies and the exceptions to the rule.
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