Double Jeopardy Under the UCMJ

Double jeopardy—the constitutional protection against being tried twice for the same offense—applies in courts-martial, but it operates differently in the military justice system than in civilian courts. Understanding those differences is critical, particularly when parallel civilian and military investigations are involved or when the government attempts to re-litigate charges after a failed prosecution.

Our firm has extensive experience litigating double jeopardy issues at trial and on appeal. Most recently, we obtained extraordinary relief in U.S. v. Murillo, where the Navy-Marine Corps Court of Criminal Appeals granted an extraordinary writ on double jeopardy grounds, halting an unlawful prosecution and resulting in our client being honorably discharged without a conviction!

The Constitutional Foundation

The Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This protection applies to service members, but Congress has implemented it in the military justice system through the UCMJ and the Rules for Courts-Martial.

Article 44, UCMJ — Former Jeopardy

Double jeopardy in courts-martial is governed primarily by Article 44, UCMJ, often referred to as the military’s former-jeopardy provision.

Article 44 prohibits:

• A second trial for the same offense after acquittal
• A second trial for the same offense after conviction
• Multiple punishments for the same offense

Jeopardy generally attaches in a court-martial:

• In a members case, when the members are sworn
• In a judge-alone case, when the first witness is sworn

Once jeopardy attaches, the government’s ability to withdraw, re-refer, or restructure charges becomes sharply limited. Improper withdrawals, re-referrals, or attempts to “fix” a failing case may trigger dismissal with prejudice.

Dual Sovereigns and Parallel Prosecutions

One of the most misunderstood aspects of double jeopardy is the dual sovereigns doctrine.

Under this doctrine:

• The federal government and a state government are considered separate sovereigns
• The military justice system is also considered a separate sovereign for double-jeopardy purposes in certain contexts

As a result, a service member may face:

• A civilian prosecution (state or federal), and
• A court-martial,
  arising from the same underlying conduct.

However, dual sovereigns does not mean the government has unlimited freedom. Military prosecutions following civilian proceedings raise complex issues involving:

• Issue preclusion
• Fundamental fairness
• Due process
• Improper command influence
• Abuse of process

In some cases, what appears permissible on paper becomes unlawful in practice.

Extraordinary Relief and Appellate Intervention

Double jeopardy violations are uniquely suited for extraordinary relief, including writs of prohibition or mandamus, because the harm is not cured by appeal after conviction. Being forced to stand trial twice is the constitutional injury.

In U.S. v. Murillo, we filed an extraordinary writ with the Navy-Marine Corps Court of Criminal Appeals, successfully stopping a prosecution that violated double jeopardy protections. Such relief is rare and reflects both the seriousness of the violation and the court’s recognition that waiting for post-trial appeal was not an adequate remedy.

For more on our appellate and writ practice, see our

Appellate & Extraordinary Writs page.

Why Double Jeopardy Litigation Requires Experienced Civilian Counsel

Double jeopardy issues in courts-martial often arise from:

• Withdrawn and re-referred charges
• Mistrials and retrials
• Parallel civilian investigations
• Appellate reversals and rehearings
• Command efforts to “salvage” a failing case

These issues are heavily litigated, highly technical, and often misunderstood—even by experienced trial counsel. They require deep familiarity with:

• Article 44, UCMJ
• R.C.M. 907 and 604
• Appellate writ practice
• Service-court jurisprudence

Our attorneys routinely litigate these issues at trial and before the service courts of criminal appeals.

Frequently Asked Questions

Can the military retry me after charges were dismissed?

Sometimes—but not always. If jeopardy has attached, or if the government dismissed and re-referred charges for improper reasons, a retrial may be barred under Article 44 and the Rules for Courts-Martial.

If I was acquitted, can the military charge me again?

No. An acquittal is final. The government may not retry the same offense or a lesser-included offense based on the same conduct.

Can I be court-martialed after a civilian case?

Possibly, under the dual sovereigns doctrine. However, follow-on military prosecutions raise serious constitutional and fairness concerns that must be carefully litigated.

What if my civilian case was dismissed or never charged?

That does not automatically allow a court-martial. The reasons for dismissal, the timing, and the government’s intent all matter—and may support a double jeopardy or due-process challenge.

Can double jeopardy be raised before trial?

Yes. In appropriate cases, double jeopardy claims can and should be raised before trial, including through requests for extraordinary appellate relief.

Talk to a Civilian Military Defense Lawyer

If you are facing a second prosecution, a re-referred case, or parallel civilian and military proceedings, double jeopardy may be a critical—and dispositive—issue.

Do not assume the government “can’t do that.”

Make them prove it.

Contact Cave & Freeburg, LLP to speak with a civilian military defense lawyer experienced in complex double jeopardy litigation under the UCMJ.