14. Double Jeopardy

Question 1

When does “jeopardy” attach in a bench trial?

Answer 1

When the first witness is sworn

Question 2

When does “jeopardy” attach in a jury trial?

Answer 2

When the jury is sworn

Question 3

When does “jeopardy” attach in a guilty plea?

Answer 3

When the court accepts the plea unconditionally

Question 4

The common law approach to the “same offense” requirement:

Answer 4

Two offenses are not the “same offense” for double jeopardy purposes if each contains an element the other does not.

Question 5

The NY approach to the “same offense” requirement:

Answer 5

In defining “same offense,” NY uses the “transaction test” which requires that a defendant be charged with all offenses arising from any single transaction unless:

(1) the offenses have substantially different elements;

(2) each offense contains an element not in the other and
prevents different harms;

(3) one is for criminal possession and the other, use; or
(4) each offense involves harm to a different victim.

Question 6

The “same sovereign” requirement

Answer 6

Double Jeopardy bars retrial for the same offense by the same sovereign ONLY.

Question 7

The four exceptions to the double jeopardy rule that permit retrial:

Answer 7

1. a hung jury;
2. a mistrial for manifest necessity;
3. a successful appeal, unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial; or
4. a breach of the plea agreement by the defendant.