12. Double Jeopardy Clause (5A/14A)

Question 1

What is the Double Jeopardy Clause?

Answer 1

Once jeopardy attaches => D can NOT be tried for same offence

If Double Jeopardy Clause is violated => Must dismiss for ONE charge (NOT both)

Question 2

What is the procedure for Double Jeopardy Clause?

Answer 2

1) D is charged with 2 crimes based on the same conduct
2) Legislature does NOT clearly intend to allow conviction of both crimes on same conduct
3) Each crime does NOT require proof of additional element that other does not (Blockburger Test)
4) Double Jeopardy attaches
5) Double Jeopardy Clause violated

Question 3

When does Double Jeopardy attach and prevent re-trial?

Answer 3

Jury trial
- Empaneling + Swearing

Bench trial
- First witness is sworn

Juvenile proceedings
- Commencement

Criminal proceedings

Attempt to re-try for ‘greater offence’ after successful appeal on conviction for lesser offence charge when previously charged with greater offence

1) Charged for greater offence => Convicted of lesser offence => Reversed
2) No re-trial for ‘greater’ offence

Attempt to re-try for lesser offence if conviction for greater offence

State + Municipality

Issue preclusion
- Factually determined issue for first crime can NOT convict for second crime (BUT can still do re-trial for first crime)

Question 4

When does Double Jeopardy attach and allow re-trial?

Answer 4

Hung trial (first trial)

Mistrial for manifest necessity

Successful appeal

• Based on weight of/erroneously admitted evidence => Re-trial
• NOT based on sufficiency of evidence => No re-trial

‘Harsher’ sentence
- NOT no sentence => Sentence

Breach of plea bargain
- Vacate plea + sentence => Re-instate charges

D elects to have offences tried in separate proceedings
- NOT single proceeding

Conspiracy + Conviction for offence (overt act)

Criminal + Civil proceedings
- UNLESS clear legislative intent to impose criminal penalty

State + Fed Governments (separate sovereigns)

State + State (separate states)

Attempt to re-try for greater offence if conviction for lesser offence

• Unlawful conduct did not occur at time of conviction for lesser offence
• Unlawful conduct was not discoverable despite due diligence
• Battery conviction, victim dies => Murder trial allowed

Statute of limitations NOT expired

• Begins when crime committed
• D must be charged before SoL expires

Question 5

What type offences are not the same under the Blockburger Test?

Answer 5

Manslaughter v Hit-and-run

Reckless driving v Drunk driving

Reckless driving v Failure to yield the right of way

Uttering forged check v Obtain money by false pretenses by using forged check

Question 6

What exception is required for Blockburger Test?

Answer 6

1) Legislative intent
2) Multiple punishments for same offence
3) Single trial

Question 7

What is the rule under Blockburger Test?

Answer 7

No punishment for two crimes that do NOT require proof of additional element that other does

Question 8

When may Prosecution appeal decisions after jeopardy has attached?

Answer 8

Dismissal on Defendant’s motion
- Defendant acquitted NOT based on merits

Successful appeal does NOT require re-trial