Double Jeopardy Flashcards
When does DJ attach in a jury trial?
When the jury is sworn in.
When does DJ attach in a bench trial?
After the first witness is sworn.
When does DJ attach in a guilty plea?
When the court accepts D’s plea unconditionally.
Does DJ apply to civil proceedings?
No.
So - the SEC can prosecute you civilly and then USAO can prosecuted you criminally for the same offense.
What are the two basic requirements for DJ to apply?
- same offense
2. prosecuted by the same sovereign
What is the federal “same offense” requirement?
Two offenses are not the same if EACH contains an element the other does not. They must each have at least one non-overlapping element.
What is the NY rule for “same offense”?
NY uses the transactional test: D must be charged with all offenses arising from a single transaction in one case UNLESS 1+ of the following:
- offenses have substantially different elements
- each offense contains an element not in the other (prevents different harms)
- one is for possession, the other for use
- each involved harm to a different victim
What is a greater or lesser included offense?
Only one has an element not contained in the other (i.e. an element that ratchets the crime up or down in degree). These ARE considered the same offense and DJ would prevent later prosecution of one if already prosecuted on the other.
What is the “same sovereign” requirement?
DJ bars retrial for the same offense only if it’s prosecuted by the same sovereign.
State and federal governments are NOT SAME
Different states are NOT SAME
States and municipalities ARE SAME
If the federal government has prosecuted D for robbery, can a state prosecute the same D for the same robbery?
Yes - federal and state are not the same sovereign.
If State A prosecutes D for larceny, can State B also prosecute D for the same larceny?
Yes - different states are not the same sovereign.
If NYS prosecutes D for assault, can NYC prosecute D for the same assault?
No - municipalities and states are considered the same sovereign.
If the trial ends with a hung jury, can D be re-tried?
Yes - hung juries do not trigger DJ.
If the trial ends in a mistrial for manifest necessity, can D be re-tried?
Yes - mistrials called for manifest necessity do not trigger DJ.
If D successfully appeals and the case is reversed on insufficiency of evidence, can D be retried?
No. If the case is reversed on appeal because the prosecution’s evidence was insufficient - DJ applies, and D may not be retried.
