Criminal Procedure AMP - Double Jeopardy Flashcards
In __________, jeopardy attaches when the first witness is sworn in.
A A bench trial
B A jury trial
C Both bench and jury trials
A
In a bench trial, jeopardy attaches when the first witness is sworn in. Under the Fifth Amendment right to be free of double jeopardy, a defendant 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. QUESTION ID: R0069B Additional Learning
The Double Jeopardy Clause prohibits __________.
A retrying a defendant for a more serious offense than at his first trial
B imposition of a harsher sentence for a conviction after a retrial
C retrying a defendant whose conviction was reversed on appeal
D imposing the death sentence after a retrial
A
The Double Jeopardy Clause prohibits retrying a defendant for a more serious offense than at his first trial, even if at the second trial the defendant actually is convicted only of an offense no more serious than the one at the first trial. The Double Jeopardy Clause does not prohibit imposition of a harsher sentence for a conviction after a retrial. Such a sentence is valid, as long as it does not violate any vindictiveness concerns. The Double Jeopardy Clause also does not prohibit retrying a defendant whose conviction was reversed on appeal. Retrying a defendant is only prohibited if the defendant is being retried for any offense more serious than that for which he was convicted at the first trial. The Double Jeopardy Clause does not per se prohibit imposition of a death sentence after retrial. However, a death sentence may be barred in narrow circumstances: When there is a formalized, separate process for imposing the death penalty (e.g., when guilt is first determined and then the jury is presented with evidence on whether to impose death), if at the first trial the jury finds that a death sentence is not appropriate, a death sentence cannot be imposed at a second trial. QUESTION ID: R0071 Additional Learning
Once jeopardy has attached, a defendant __________ be retried after his successful appeal __________.
A May not; under any circumstances
B May; unless his conviction was reversed based on insufficiency of the evidence
C May not; if his conviction was reversed based on a constitutional violation
B
If jeopardy has attached, a defendant may be retried after a conviction and successful appeal unless the defendant’s conviction was reversed for insufficient evidence to support the guilty verdict. Retrial is permitted if the reversal is based on the weight, rather than the sufficiency, of the evidence, or when the reversal was due to erroneously admitted evidence. This includes most constitutional violations (e.g., a Sixth Amendment violation based on use of hearsay from a nontestifying witness). QUESTION ID: R0070B Additional Learning
Imposing cumulative punishments for two or more offenses that constitute the same crime under the Blockburger test __________ the Double Jeopardy Clause.
A Generally does not violate
B Always violates
C Generally violates
C
Imposition of cumulative punishments for two or more offenses constituting the same crime generally violates the Double Jeopardy Clause. The Blockburger test generally prohibits multiple punishments for the same offense. The exception to this rule is where the offenses are intended to carry separate punishments and are imposed at a single trial. This is true even though the offenses constitute the same crime under the Blockburger test. This rule requires imposing the punishments at a single trial, not at different trials. QUESTION ID: R0073B Additional Learning
The constitutional prohibition against double jeopardy prohibits __________.
A an appeal following the grant of a motion to set aside the jury’s verdict
B a person from being tried for the same conduct by both a state and the federal government
C a person from being tried for the same conduct by both a state and one of its municipalities
D an appeal of a case dismissed on grounds other than merits-based grounds
C
The constitutional prohibition against double jeopardy prohibits a person from being tried for the same conduct by both a state and one of its municipalities. A state and one of its municipalities are considered the same sovereign, and double jeopardy applies to trials of the same conduct by the same sovereign. On the other hand, double jeopardy does not apply to trials by separate sovereigns, so a person MAY be tried for the same conduct by both a state and the federal government. Even after jeopardy has attached, the Double Jeopardy Clause does not prohibit an appeal of a case dismissed on grounds other than merits-based grounds. The prosecution may appeal any dismissal based on the defendant’s motion that does not constitute an acquittal on the merits. Similarly, the Double Jeopardy Clause does not bar an appeal following the grant of the defendant’s motion to set aside the jury’s verdict. An appeal by the prosecution is not barred if a successful appeal would not require a retrial, and if an appellate court overrules the grant of a motion to set aside a jury verdict, no new trial is held; rather, the original jury’s verdict is reinstated. QUESTION ID: R0076 Additional Learning
Under what circumstances is a defendant not allowed to be retried after jeopardy has attached?
A If he successfully appealed his conviction
B If his first conviction was reversed based on insufficiency of the evidence
C If his first trial ended in a hung jury
D If there was a manifest necessity to end the original trial before a verdict
B
If jeopardy has attached, a defendant may not be retried if his first conviction was reversed for insufficiency of the evidence to support the guilty verdict. Retrial is permitted, however, if the reversal is based on the weight, rather than the sufficiency, of the evidence, or when the reversal was due to erroneously admitted evidence. Even if jeopardy has attached, a defendant may be retried if his first trial ended in a hung jury. Certain exceptions permit retrial of a defendant, even if jeopardy has attached, and this is one of the exceptions. Similarly, although jeopardy has attached, a defendant may be retried for the same offense if there was a manifest necessity to end the original trial before a verdict. Double jeopardy is not an absolute bar to two trials. Furthermore, even if the defendant has successfully appealed a conviction, the state may retry the defendant, unless, as noted above, the ground for reversal was insufficient evidence to support the guilty verdict. QUESTION ID: R0070A Additional Learning
When does jeopardy attach in a jury trial?
A At the commencement of the trial.
Correct
B At the empaneling and swearing of the jury.
C At the first hearing in which the court begins to hear evidence.
D When the first witness is sworn.
B
Jeopardy attaches in a jury trial at the empaneling and swearing of the jury. Under the Fifth Amendment right to be free of double jeopardy, a defendant may not be retried for the same offense once jeopardy has attached. Jeopardy does not attach in a jury trial when the first witness is sworn. This is when jeopardy attaches in a bench trial, not in a jury trial. Jeopardy does not attach in a jury trial at the commencement of the trial or at the first hearing in which the court begins to hear evidence. This is standard for attachment for a juvenile proceeding. QUESTION ID: R0069 Additional Learning
If jeopardy has attached, a defendant may not be retried if __________.
A the defendant’s conviction was reversed for insufficient evidence
B the defendant has successfully appealed a conviction
C the first trial ended in a hung jury
D there was a manifest necessity to abort the original trial
A
If jeopardy has attached, a defendant may not be retried if the defendant’s conviction was reversed for insufficient evidence to support the guilty verdict. Retrial is permitted, however, if the reversal is based on the weight, rather than the sufficiency, of the evidence, or when the reversal was due to erroneously admitted evidence. Even if jeopardy has attached, a defendant may be retried if the first trial ended in a hung jury. Certain exceptions permit retrial of a defendant, even if jeopardy has attached, and this is one of the exceptions. Similarly, although jeopardy has attached, a defendant may be retried for the same offense if there was a manifest necessity to abort the original trial. Double jeopardy is not an absolute bar to two trials. Furthermore, even if the defendant has successfully appealed a conviction, the state may retry the defendant, unless, as noted above, the ground for reversal was insufficient evidence to support the guilty verdict. QUESTION ID: R0070 Additional Learning
Jeopardy attaches in a jury trial when:
A Opening statements begin
B The jury is empaneled and sworn
C The judge delivers jury instructions
D The first witness is sworn
B
Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Under the Fifth Amendment right to be free of double jeopardy, a defendant may not be retried for the same offense once jeopardy has attached. Jeopardy does not attach in a jury trial when the first witness is sworn. This is when jeopardy attaches in a bench trial, not in a jury trial. By the time opening statements begin or the judge delivers jury instructions, jeopardy has already attached. QUESTION ID: R0069A Additional Learning
Attachment of jeopardy does not bar __________.
A retrial for manslaughter if jeopardy attached to a murder charge
B retrial for murder if the victim dies after jeopardy attached to a battery charge
C retrial for robbery if jeopardy attached to a theft charge
D retrial for armed robbery if jeopardy attached to a felony murder charge
B
Attachment of jeopardy does not bar retrial for murder if the victim dies after jeopardy attached to a battery charge. This is an exception to the normal rule that attachment of jeopardy to a lesser included offense bars retrial for a greater offense. Attachment of jeopardy does bar retrial for: (i) Manslaughter if jeopardy attached to a murder charge,(ii) Armed robbery if jeopardy attached to a felony murder charge, or(iii) Robbery if jeopardy attached to a theft charge. Attachment of jeopardy to a greater offense bars retrial for a lesser included offense, and manslaughter is a lesser-included offense of murder, while armed robbery is a lesser-included offense of the felony murder from which it arose. Note, however, that a state may continue to prosecute a charged greater offense, despite a defendant’s guilty plea to a lesser included offense stemming from the same incident. QUESTION ID: R0074 Additional Learning
Which constitutional provision prohibits retrying a defendant for a more serious offense than at his first trial?
A Due Process Clause
B Cruel and Unusual Punishment Clause
C Double Jeopardy Clause
D Equal Protection Clause
C
The Double Jeopardy Clause prohibits retrying a defendant for a more serious offense than at his first trial, even if at the second trial the defendant actually is convicted only of an offense no more serious than the one at the first trial. The Due Process Clause is a good second choice. It does not specifically address retrials, but substantive due process prohibits arbitrary action, and retrying a defendant for a more serious offense than at his first trial might be seen as arbitrary. Nevertheless, because the Clause does not specifically address retrials, it is not as good a choice as the Double Jeopardy Clause. The Equal Protection Clause prohibits the government from unreasonably discriminating between similarly situated people and is not applicable to retrying a defendant for a more serious offense than at his first trial. The Cruel and Unusual Punishment Clause prohibits just that—cruel and unusual punishment. It does not prohibit retrying a defendant for a more serious offense than at his first trial. QUESTION ID: R0071B Additional Learning
Under the Blockburger test, two crimes do not constitute the same offense if __________.
A each crime requires a different set of facts
B each crime requires proof of an element that the other does not
C some of the same facts may be necessary to prove both crimes
D one crime may be proved by proving all of the elements of the other crime
B
The Double Jeopardy Clause prohibits retrying a defendant for the same offense. Under the Blockburger test, however, two crimes do not constitute the same offense if each crime requires proof of an element that the other crime does not require. Thus, under Blockburger, reckless homicide and driving while intoxicated would not be the same offense, because reckless homicide requires proof of death and driving while intoxicated requires proof of intoxication. The Blockburger test does not require that each crime have a different set of facts, that one crime be proved by proving all of the elements of the other crime, or that some of the same facts be necessary to prove both crimes. The test is met if each crime has an additional element not found in the other, regardless of whether the same facts are necessary to prove both crimes. QUESTION ID: R0072 Additional Learning
The Double Jeopardy Clause prohibits:
A Repetitive criminal prosecutions for the same crime
B A criminal prosecution after a civil lawsuit based on the same facts
C Repetitive civil lawsuits for the same conduct
A
The Double Jeopardy Clause only prohibits repetitive criminal prosecutions. Thus, a state could bring a civil action against a defendant who has already been tried criminally for the same conduct. The state could also bring a criminal action against a defendant who has already faced a civil trial for the same conduct. However, if the civil statute imposes a criminal penalty, the Double Jeopardy Clause applies. QUESTION ID: R0075A Additional Learning
The right to be free of double jeopardy for the same offense arises from __________.
A the First Amendment
B the Fifth Amendment
C the Fourth Amendment
D the Sixth Amendment
B
The right to be free of double jeopardy derives from the Fifth Amendment and has been incorporated into the Fourteenth Amendment. Under this right, once jeopardy attaches, the defendant may not be retried for the same offense. The right to be free of double jeopardy does not arise from the First Amendment, the Fourth Amendment, or the Sixth Amendment. It arises from the Fifth Amendment. QUESTION ID: R0068 Additional Learning
The Double Jeopardy Clause prohibits imposition of cumulative punishments for two or more offenses that constitute the same crime under the Blockburger test unless:
A The sentences for the two crimes run concurrently
B They are intended to carry separate punishments and the sentences are imposed at different trials
C They are intended to carry separate punishments and are imposed at the same trial
C
Imposition of cumulative punishments for two or more offenses violates the Double Jeopardy Clause unless they are intended to carry separate punishments and are imposed at a single trial. This is true even though the offenses constitute the same crime under the Blockburger test. Since the punishments must be imposed at the same trial, the choice indicating that the sentences are to be imposed at different trials is incorrect. The normal rule is that multiple punishments are prohibited for offenses constituting the same crime under Blockburger, even if the sentences for the two crimes run concurrently. Thus, concurrent sentences do not allow imposition of cumulative punishments for the same crime. QUESTION ID: R0073A Additional Learning
