# Lawyer dopers, help me understand double jeopardy **URL:** \ **Category:** Factual Questions\ **Created:** [November 7, 2006, 9:21pm UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472 "2006-11-07T21:21:30Z")\ **Posts on this page:** 8\ **Page:** 1
**Author:** ![FatBaldGuy](https://avatars.discourse-cdn.com/v4/letter/f/ecd19e/32.png) [@FatBaldGuy](https://boards.straightdope.com/u/FatBaldGuy)\ **Post date:** [November 7, 2006, 9:21pm UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472/1 "2006-11-07T21:21:30Z")
We hear all the time that because of the 5th amendment, a person cannot be tried twice for the same crime. However, here is the text of the 5th amendment (bolding mine). > [@](#): > > No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; **nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb** ; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. From reading this, it would appear that the prohibition against double jeopardy only applies in cases where a person could be sentenced to lose “life or limb.” When and how did it come to be interpreted to apply to all crimes? ---
**Author:** ![Philster](https://avatars.discourse-cdn.com/v4/letter/p/13edae/32.png) [@Philster](https://boards.straightdope.com/u/Philster)\ **Post date:** [November 7, 2006, 9:52pm UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472/2 "2006-11-07T21:52:46Z")
[QUOTE=FatBaldGuy] We hear all the time that because of the 5th amendment, a person cannot be tried twice for the same crime. However, here is the text of the 5th amendment (bolding mine). From reading this, it would appear that the prohibition against double jeopardy only applies in cases where a person could be sentenced to lose “life or limb.” When and how did it come to be interpreted to apply to all crimes? [/QUOTE] The issue is that ‘life or limb’ refers to the possibility of being **sentenced** by means of a second go-around. The ‘life or limb’ does not refer to the **crime** , it refers to the **punishment.** Being incarcerated, or given any other penalty, is considered being put in jeopardy of life or limb. More specifically, incarceration or other basic penalties is being placed in jeopardy of limb. ---
**Author:** ![FatBaldGuy](https://avatars.discourse-cdn.com/v4/letter/f/ecd19e/32.png) [@FatBaldGuy](https://boards.straightdope.com/u/FatBaldGuy)\ **Post date:** [November 7, 2006, 9:58pm UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472/3 "2006-11-07T21:58:19Z")
I understand that it refers to the punishment. But my reading of the text leads me to interpret the meaning as, “If a person is being tried for a crime where the sentence may be the death penaltly or amputation of a limb, he cannot be tried twice for the same crime.” How does this apply to crimes where the punishment is a term in the slammer? ---
**Author:** ![Gary\_T](https://avatars.discourse-cdn.com/v4/letter/g/3ec8ea/32.png) [@Gary\_T](https://boards.straightdope.com/u/Gary_T)\ **Post date:** [November 7, 2006, 10:47pm UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472/4 "2006-11-07T22:47:34Z")
From [here:](http://www.questia.com/PM.qst?a=o&se=gglsc&d=5001869379&er=deny) That “life or limb” refers to the most serious punishments should be obvious…but the commonly-understood meaning of those words gives no hint of their modern-day, judicially-imposed meaning. Surely there are few, if any, provisions of the Constitution from which the Supreme Court, in its interpretations, has deviated more drastically from the literal terms used at conception. In effect, the qualifying words “of life or limb” have been written out of the Fifth Amendment, and the Clause should now more aptly state, “nor shall any person be subject for the same offense to be twice put in jeopardy of [any punishment].” * * * More details and analysis at the above site. ---
**Author:** ![Philster](https://avatars.discourse-cdn.com/v4/letter/p/13edae/32.png) [@Philster](https://boards.straightdope.com/u/Philster)\ **Post date:** [November 7, 2006, 11:33pm UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472/5 "2006-11-07T23:33:26Z")
Ampuation is an enormous leap from being placed in jeopardy. Understanding that amputation would likely be considered cruel and unusual punishment, and any argument for such would fall apart. Being incarcerated, or forced to do manual labor (if that helps you imagine it better), would be an example of placing one’s limb in jeopardy. You are getting very very literal in your interpretation and leap, and you need to understand the spirit and style of the writers (no wonder we have historians who study such things). ---
**Author:** ![Philster](https://avatars.discourse-cdn.com/v4/letter/p/13edae/32.png) [@Philster](https://boards.straightdope.com/u/Philster)\ **Post date:** [November 7, 2006, 11:42pm UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472/6 "2006-11-07T23:42:25Z")
Also from that link: "…The stretch can only be made by viewing the words “life or limb” as a term of art, or as one commentator more eloquently stated, as “a single unitary phrase… whose whole is greater than its parts”–words that are to be read as “poetic notes:” (6) As poetry, in other words, “life or limb” can become a metaphor for all punishment. But this convenient rationalization, as will be explained, disregards the likelihood that the Framers understood double jeopardy not as a broad, general, and evolving concept, but rather as a finite and static rule limited by its own terms. The Supreme Court, motivated by policy instead of history, adopted the poetic notes approach in the 1873 case of Ex parte Lange(7) by applying the Double Jeopardy Clause to misdemeanors and misdemeanor punishment, and thus clearing the way for the evolution of double jeopardy law in its current form. Since that time, the Lange opinion has enjoyed nearly unquestioned acceptance and has been zealously defended." ---
**Author:** ![FatBaldGuy](https://avatars.discourse-cdn.com/v4/letter/f/ecd19e/32.png) [@FatBaldGuy](https://boards.straightdope.com/u/FatBaldGuy)\ **Post date:** [November 7, 2006, 11:56pm UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472/7 "2006-11-07T23:56:43Z")
Thanks for the insights and links. I know that today amputation is not used as a penalty, but I think it was not unheard of in the 18th century. I was just wondering where/when the current interpretation came about. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [November 8, 2006, 5:00am UTC](https://boards.straightdope.com/t/lawyer-dopers-help-me-understand-double-jeopardy/379472/8 "2006-11-08T05:00:50Z")
“Double jeopardy”, like most provisions in the Bill of Rights, had antecedents in English common law, and in American colonial and state law. Whether the prohibition applied, in England, to all criminal cases or only to capital cases seems to have been a [bit unclear](http://www.questia.com/PM.qst?a=o&d=5000384692&er=deny): > [@](#): > > “By the time [Coke’s] First Institute was completed, the double jeopardy doctrine was clearly delineated as a purely criminal concept serving as protection against the state even for relatively minor offenses”. It was Blackstone who began to use the term jeopardy to describe the pleas, though he limited the application of the doctrine to felonie. In other words, Coke, who wrote in the Seventeenth Century, took a more expansive view of the protection than Blackstone, who wrote in the Eighteenth. This is perhaps the opposite of what one would expect. In America, the prohibition passed into state common law, and per [Findlaw](http://caselaw.lp.findlaw.com/data/constitution/amendment05/02.html#f41), was first enshrined in a state Constitution by New Hampshire in 1784: > [@](#): > > ‘‘No subject shall be liable to be tried, after an acquittal, for the same crime or offence.’’ Art. I, Sec. XCI. This is more expansive than the federal rule, in applying to all crimes, but less expansive in requiring an earlier acquittal in order to activate. In the first Congress, again per Findlaw, > [@](#): > > Madison’s version of the guarantee as introduced in the House of Representatives read: ‘‘No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.’’ Opposition in the House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike ‘‘or trial’’ from the clause failed. As approved by the Senate, however, and accepted by the House for referral to the States, the present language of the clause was inserted. That explanation leaves one feeling a little incomplete. Certainly it would have been easy to correct the “appeal loophole” without limiting the clause to “jeopardy of life or limb”. Given that there was a history of uncertainty as to whether the common-law prohibition applied to all crimes or only to more serious crimes, I’d have to assume that the restriction was deliberate. I can accept “life or limb” as poetic licenses for any felony, given that capital and/or corporal sentences were possible for more crimes in 1789 than today, but not as poetic license for any felony or misdemeanor. I’d have to agree with **Philster** ’s source that the Supreme Court’s extension was a “convenient rationalization” motivated by “policy instead of history”.