CRIM PRO - 5th Amendment Double Jeapordy Flashcards
5th Amendment Double Jeopardy - Foundational Statement
The 5th Amendment, applicable to the states through the 14th Amendment, limits the government’s ability to re-prosecute a person or increase punishment for the “same offense”.
5th Amendment Double Jeopardy - when does it apply?
Applies to proceedings in which a persons liberty is at risk. Includes all criminal proceedings. Does NOT include civil proceedings UNLESS there is a sanction the legislature intended to be criminal or otherwise appears to be punitive.
5th Amendment Double Jeopardy - when does it attach?
Only when the court has jurisdiction to try the defendant. In non-jury case - when the court begins to hear the evidence In jury trial - when the jury is selected and sworn In guilty plea - When court accepts the D’s guilty pleas to that charge
5th Amendment Double Jeopardy - what is the general rule?
The general rule is that once jeopardy has attached, the trial must be completed, and the defendant cannot be retried for the same offense. Same offense: 1. Single criminal transaction - linked in time, place and circumstance 2. Continuing criminal conduct
Same Offense - Required Evidence Test (5th Amendment Double Jeopardy)
Whether charges are the same offense is determined by the required evidence test, which holds that offenses are the same offense if all of the elements of one offense are contained within the other offense.
Crimes are NOT the same offense for double jeapordy purposes if each requires proof of a fact which the other does not.
Merger of Offense (5th Amendment Double Jeopardy)
If a D is convicted of a “greater” offense, the defendant may not also receive a conviction for, nor punishment for a lesser included offense. The lesser convictions merge into the conviction for the greater offense. Merger is a conviction AND sentencing issue.
5th Amendment Double Jeopardy - what is required for the government to comply?
No retrial once the D has been acquitted. No trial in both municipality and state. EXCEPT: Dual sovereignty - prosecutions under the laws of two jurisdictions
5th Amendment Double Jeopardy - what is the appropriate remedy for violation for being tried twice?
The remedy for a Double Jeopardy violation involving being tried twice for the same offense is pre-trial dismissal of the charges - the defendant should not have to face another trial. D files a pre-trial Motion to Dismiss.
5th Amendment Double Jeopardy - what is the appropriate remedy for being punished twice for the same offense?
The remedy is to merge offenses or to prohibit or vacate the second illegal sentence.
5th Amendment Double Jeopardy - Motion for Severance of Offenses
A party may seek to have crimes that are the same offense for double jeopardy purposes tried separately by filing a Motion for Severance of Offenses. D’s Severance may waive double jeopardy complaint.
5th Amendment Double Jeopardy - retrial of the same offense if permitted if…
- Retrial after successful appeal or dismissal 2. Retrial after mistrial 3. Retrial after plea 4. Retrial based on new conduct 5. Defendant seeks separate trials for the the crimes that would be considered the same.
5th Amendment Double Jeopardy - Collateral Estoppel Rule
Collateral estoppel may bar re-litigation of issues which were actually and finally determined at a previous trial in a subsequent trial between the same parties.
5th Amendment Double Jeopardy - General rule re: increased or second punishment
A person cant be punished twice, meaning increased or separate punishment for the same offense. If the D has been convicted of greater and lesser offenses, she can only be sentenced for the greater offenses. A legal sentence can’t be increased after a successful appeal, unless authorized by statute, or based on behavior subsequent to the first sentencing.
5th Amendment Double Jeopardy - Dual Sovereignty Doctrine - General rule
Permits separate jurisdictions to prosecute for violations of their laws arising from the same conduct without violating the double jeopardy clause.
