The fifth amendment provision against double jeopardy is one of the basic protections afforded defendants by the United States Constitution. Its roots are found in early common law,' and the policies which it represents have been gradually defined by federal courts to meet various situations of inequality in the position of a criminal defendant confronted by federal prosecuting attorneys. Presently the double jeopardy provision is not incorporated by the fourteenth amendment as a restriction upon state action, but this condition may not prevail much longer. Should double jeopardy become incorporated into the "due process" clause of the fourteenth amendment, states will be forced to consider the total body of federal double jeopardy policies. And even if incorporation is delayed, "an overview of federal policy in the area is needed.
Jay A. Sigler,
Federal Double Jeopardy Policy,
19 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol19/iss2/5