_- CrimP 14 - Doubl Jeoprdy Flashcards
DOUBLE JEOPARDY.
Rule Statement.
Which Amendment?
Under the Fifth Amendment, a person may not be retried for the ***SAME offense once jeopardy has ATTACHED.
When Jeopardy attaches
- Jury trial: Empaneling and swearing of jury
- Bench trial: When first Witness is sworn.
WHEN JEOPARDY ATTACHES
Under the Fifth Amendment, a person may not be retried for the same offense once jeopardy has attached.
Jeopardy attaches in a jury trial at the empaneling and swearing of the jury.
In bench trials jeopardy attaches when the first witness is sworn.
Commencement of a juvenile proceeding bars a subsequent criminal trial for the same offense.
Jeopardy generally does not attach in civil proceedings other than juvenile proceedings.
EXCEPTIONS PERMITTING RETRIAL: (5)
Certain exceptions permit retrial of a defendant even if jeopardy has attached:
• (HJ) FIRST TRIAL ENDS IN HUNG JURY: A state may retry a defendant whose first trial ends in a hung jury. (No unanimouty)
• (MF) MANIFEST NECESSITY TO ABORT FIRST TRIAL: A trial may be discontinued and the defendant reprosecuted for the same offense when there is manifest necessity to abort the original trial or when termination occurs at the behest of the D on any ground not constituting acquittal on the merits.
••• MEDICAL EMERGENCY during trial
• (SPC) D SUCCESFULLY APPEALED CONVICTION (UNLESS grounds for reversal was insufficient evidence).
A state may retry a defendant who has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict.
Retrial is permitted when reversal is based on the weight (rather than sufficiency) of the evidence.
However, on retrial, a defendant may not be tried for a greater offense than that for which they were convicted.
A harsher sentence may be imposed for reasons other than vindictiveness for taking an appeal, but if the jury found that the death penalty was not appropriate in the first trial, a death sentence may not be imposed at the second trial.
• (BPB) DEFENDANT BREACHED PLEA BARGAIN.
Charges may be reinstated after a defendant breaches their plea bargain.
• (OTS) D COULD”VE BEEN TRIED FOR MULTIPLE CHARGES IN SINGLE TRIAL, BUT CHOSE TO HAVE OFFENSES TRIED SEPERATELY.
If a defendant could have been tried for multiple charges in a single trial, but the defendant elects to have the offenses tried separately, jeopardy does not attach to the first trial for the other charges.
Manslaughter/Murder. If a defendant is convicted of manslaughter at the first trial but then successfully appeals to get a new trial, the most serious offense the defendant can now be tried for is ___.
Manslaughter/Murder. If a defendant is convicted of manslaughter at the first trial but then successfully appeals to get a new trial, the most serious offense the defendant can now be tried for is man- slaughter.
SAME OFFENSE
.
General Rule—When Two Crimes Not the Same Offense
Two crimes are the same offense UNLESS EACH crime requires proof of an additional element that the other does not require.
(AKA not the same offense if each crime requires proof of an additional element that the other does not.)
Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.
Cumulative Punishments for Offenses Constituting the Same Crime
Even if two crimes constitute the same offense under this test, multiple punishments are permissible if there was a legislative intent to have the cumulative punishments (for example, a defendant can be sentenced both for robbery and using a weapon during the commission of a crime if statutes so provide).
Lesser included offenses.
Robbery?
EXCEPTIONS:
- Attachment of jeopardy for GREATER offense bars retrial for LESSER included offense.
- Attachment of jeopardy for LESSER included offense bars retrial for GREATER offense.
For example, the crime of robbery includes the two lesser crimes of larceny and assault.
If a D is tried for robbery, they cannot be retried for the lesser included offense of larceny.
Similarly, if the D is first put in jeopardy for the lesser included offense (larceny), they cannot later be tried for the greater offense (robbery).
EXCEPTIONS:
a. New Evidence (below)
b. Effect of Plea on Related Offense
Lesser included offenses:
a. Exception—New Evidence
An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense
(1) has not occurred at the time of prosecution for the lesser offense or
(2) has not been discovered despite due diligence.
Similarly, a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery.
Lesser included offenses:
b. Effect of Plea on Related Offense
b. Effect of Plea on Related Offense
A state may continue to prosecute a charged offense despite defen- dant’s guilty plea to a lesser included or “allied” offense stemming from the same incident.
Conduct Used as a Sentence Enhancer
The Double Jeopardy Clause is not violated when a person is indicted for a crime the conduct of which was already used to enhance the defendant’s sentence for another crime.
“SAME OFFENSE” UNDER DOUBLE JEOPARDY CLAUSE Analysis
- Is D charged with 2 crimes based on the SAME CONDUCT?
• NO: Double Jeopardy prohibiton NOT violated.
• YES: q2 - Did the legislature clearly INTENT to allow conviction of BOTH CRIMES based on the same conduct?
• NO: No, intent is unclear. Move to q3.
• YES: Yes, clearly -> Double Jeopardy prohibiton NOT violated. - Does each crime require proof of an additional fact that the other does not? (Blockburger)
• NO: Double Jeopardy prohibiton IS violated.
• YES: Double Jeopardy prohibiton NOT violated.
SEPARATE SOVEREIGNS ***
Prohibition against double jeopardy does NOT apply to trials by SEPERATE SOVEREIGNS:
- State and Fed gov = Seperate sovereigns
- 2 states = separate sovereigns
- State and its municipalites = SAME sovereign
A person may be tried for the same conduct by both the state and federal governments or by two states, but not by a state and its municipalities.
The Double Jeopardy Clause also does not bar a single sovereign from successive prosecutions of distinct offenses arising from the same conduct.
Thus, a defendant can be prosecuted and convicted of an offense by one federal tribunal, and be prosecuted and convicted months later by another federal tribunal, for a different offense arising from the defendant’s initial act.
TIP: Double jeopardy questions on the MBE occasionally raise the separate sovereign issue.
The rule is simple: Separate sovereigns can try a defendant for the same offense.
Beware of facts that try to divert you from this easy issue (example, statements about juries being empaneled or witnesses sworn in—things that go to attachment). Attachment does not matter if there are two separate sovereigns.
On the other hand, remember that municipalities are considered part of the state, and so both a state and its municipality cannot validly try a defendant for the same offense.
Subsequent Civil Actions
The Double Jeopardy Clause prohibits only repetitive criminal prosecutions.
Thus, a state generally is free to bring a civil action against a defendant even if the defendant has already been criminally tried for the conduct out of which the civil action arises.
Similarly, the govern- ment may bring a criminal action even though the defendant has already faced civil trial for the same conduct unless it is clear from the statutory scheme that the purpose or effect of the statute is to impose a criminal penalty.
APPEALS BY PROSECUTION
Even after jeopardy has attached, the prosecution may appeal any dismissal on the defendant’s motion that does not constitute an acquittal on the merits.
Also, the Double Jeopardy Clause does not bar appeals by the prosecution if a successful appeal would not require a retrial.
There is no bar to a government appeal of a sentence pursuant to statute permitting such review.
However, if the jury fails to impose the death penalty, the prosecution may not seek the death penalty on retrial after successful appeal.
