In the 1903 Supreme Court case Kepner v. United States, Fredrick W. Kepner was initially acquitted of embezzlement in a trial held in the Philippines, which at that time was under U.S jurisdiction following the Spanish-American War. The U.S government appealed this decision and he was subsequently convicted during a second trial. However, Kepner argued that his conviction violated his Fifth Amendment rights against double jeopardy - being tried twice for the same crime after an acquittal or conviction. The Supreme Court ruled in favor of Kepner with a 5-4 majority vote stating that even though Philippine law allowed for such appeals by prosecutors, it conflicted with American constitutional protections against double jeopardy as provided by the Fifth Amendment to defendants once they have been acquitted of charges brought against them. This ruling established important precedent regarding how American constitutional law applies to territories under its control and reinforced protection from double jeopardy.

In the dissenting opinion for KEPNER v. UNITED STATES, Justice Harlan argued that the majority's interpretation of double jeopardy was too narrow and failed to consider the unique circumstances of U.S. territories like the Philippines, where this case originated. He believed that a broader understanding of double jeopardy would allow for retrials in cases where there were clear errors or injustices in initial trials, which he felt was necessary to ensure justice and maintain public confidence in legal systems. Furthermore, he disagreed with the majority's view that only acquittals on merits should protect against second prosecutions; instead arguing any final judgment by a competent court should be respected regardless if it is based on procedural grounds or merits.