Skip to content

Does the Double Jeopardy Clause Prohibit Second Prosecution for Crime of which Defendant Was Previously Acquitted?

Case Name: McElrath v. Georgia (2024) ___U.S.___ [144 S.Ct. 651]
Case #: 22-721
Last Updated: February 21, 2024

The Georgia Supreme Court held that a jury’s verdict of acquittal on one criminal charge and its verdict of guilty on a different criminal charge arising from the same facts were logically and legally impossible to reconcile. It called the verdicts “repugnant,” vacated both of them, and subsequently held that the defendant could be prosecuted a second time on both charges. Does the Double Jeopardy Clause of the Fifth Amendment prohibit a second prosecution for a crime of which a defendant was previously acquitted?


Under Georgia law, a jury’s verdict in a criminal case can be set aside if it is “repugnant”—meaning that it involves “affirmative findings by the jury that are not legally and logically possible of existing simultaneously.” 308 Ga. 104, 111, 839 S. E. 2d 573, 579 (2020). In this case, a jury found that petitioner Damian McElrath was “not guilty by reason of insanity” with respect to a malice-murder count, but was “guilty but mentally ill” regarding two other counts—felony murder and aggravated assault—all of which pertained to the same underlying homicide. Invoking the repugnancy doctrine, Georgia courts nullified both the “not guilty” and “guilty” verdicts, and authorized McElrath’s retrial.

McElrath now maintains that the Fifth Amendment’s Double Jeopardy Clause prevents the State from retrying him for the crime that had resulted in the “not guilty by reason of insanity” finding. Under the circumstances presented here, we agree. The jury’s verdict constituted an acquittal for double jeopardy purposes, and an acquittal is an acquittal notwithstanding its apparent inconsistency with other verdicts that the jury may have rendered.

This case was decided on 2/21/2024. Justice Jackson delivered the opinion of the court (unanimous decision). Justice Alito filed a concurring opinion.

Link to Article