19. Double Jeopardy

Question 1

what is 5th amendment prohibition on double jeopardy?

Answer 1

a person may not be retried for the same offense once jeopardy has attached

Question 2

when does jeopardy attach in a jury trial?

Answer 2

at the empaneling and swearing in of the jury

Question 3

when does jeopardy attach in a bench trial?

Answer 3

when the first witness is sworn

Question 4

generally, in what limited circumstance will jeopardy attach in civil proceedings?

Answer 4

in juvenile proceedings

Question 5

under what circumstances will retrial of a defendant be permitted EVEN IF jeopardy has attached?

Answer 5

1) first trial ends in a hung jury
2) when trial is aborted due to manifest necessity or at defendant’s request on any ground NOT constituting an acquittal on the merits
3) a successful appeal by the defendant based on anything OTHER THAN the sufficiency of the evidence (but WEIGHT is ok)
4) defendant breaches their plea bargain (charges may be reinstated)
5) when defendant elects to have charges tried separately (jeopardy only attaches to first trial)

Question 6

at retrial after a successful appeal, may a defendant be tried for an offense greater than that for which they were originally convicted?

Answer 6

NO

Question 7

at retrial after a successful appeal, may a harsher sentence than the original be imposed?

Answer 7

YES BUT only for reasons other than vindictiveness for taking an appeal

Question 8

at retrial after a successful appeal, may the second jury impose the death penalty if the original jury found that the death penalty was not appropriate?

Answer 8

NO

Question 9

when are two crimes the NOT the same offense? (Blockburger test)

Answer 9

when each crime requires proof of an additional element that the other does not require

Question 10

when are multiple punishments for the same offense allowed?

Answer 10

when it’s clear that there was legislative intent to have cumulative punishments for that crime

Question 11

will attachment of jeopardy for a greater offense bar retrial for a lesser included offense?

Answer 11

YES

Question 12

will attachment of jeopardy for a lesser included offense bar retrial of a greater offense?

Answer 12

YES

Question 13

under what circumstances regarding new evidence may a defendant be retried for a greater offense?

Answer 13

when unlawful conduct that is subsequently used to prove a greater offense either…
1) has not occurred at the time of prosecution for the lesser offense, or
2) has not been discovered despite due diligence

Question 14

when is a retrial for the greater offense of murder permitted?

Answer 14

if the victim dies after attachment of jeopardy for battery

Question 15

does the double jeopardy bar apply to trials by separate sovereigns?

Answer 15

NO

Question 16

what levels of government are considered “separate sovereigns”?

Answer 16

1) fed v. state
2) state v. state

Question 17

what levels of government are NOT “separate sovereigns”?

Answer 17

state v. local (can’t be retried)

Question 18

does double jeopardy bar prosecution of the same crime for different instances of that conduct?

Answer 18

NO (only barred if the two crimes are based on the SAME conduct)
**EXAMPLE = if defendant steals car one day and then steals a different car two days later, can be charged under same auto theft statute twice