DOUBLE JEOPARDY

Question 1

what does double jeopardy prohibit? what does double jeopardy protect? (3 things)

Answer 1

5th Amendment Double Jeopardy Clause prohibits anyone from being prosecuted twice for substantially the same offense; not every sanction applies, typically only those which involve punishment

protects 1) prosecution for same offense after acquital 2) prosecution for same offense after conviction 3) multiple punishments for same offense

Question 2

Blockburger test (“same offense”): general rule, statutory elements, lesser included offense doctrine intro

Answer 2

gov’t may prosecute Δ for more than one offense stemming from single course of conduct only when each offense requires proof of fact the other(s) do/es not

requires courts to examine elements of offense by statute without regard to actual evidence; prosecution has burden of proving each offense charged has at least one mutually exclusive element

if any one offense is subsumed by another, the offenses are considered the same offense & punishment only allowed for one (lesser included offense doctrine)

Question 3

lesser included offense doctrine

Answer 3

ex. statute A has X Y Z elements & statute B has X Y Z W elements–statute A is lesser included offense & constitutes “same offense”

mens rea = sequential, so treated similarly to other statutory elements in terms of severity (negligently, recklessly, knowingly, intentionally/purposefully)

Question 4

same transaction analysis

Answer 4

alternative analysis some courts use to determine “same offense”; requires prosecution to join all offenses committed during continuous interval that share common factual basis & display single goal or intent

Question 5

actual evidence test

Answer 5

alternative analysis some courts use to determine “same offense” for sequential trials; requires courts to compare evidence actually introduced during first trial with evidence sought to be introduced at second trial; when the evidence necessary to support conviction for one offense is sufficient to support conviction for other offense = “same offense”

Question 6

same conduct analysis

Answer 6

rejected by federal courts but used by some states to determine “same offense”; gov’t can’t prosecute twice for same criminal behavior, regardless of actual evidence during trial or statutory elements of offense

Question 7

collateral estoppel (see “Ashe v. Simpson)

Answer 7

prevents same parties (KEY) from religating ultimate factual issues previously determined by valid & final judgment

Question 8

Ashe v. Simpson rule (collateral estoppel)

Answer 8

SCOTUS collaterally estopped gov’t from prosecuting Δ for robbing 1 of 6 men at poker game when jury had already acquitted Δ of robbing 1 of other men based on alibi defense; 2nd prosecution would be permitted under Blockburger because 2 different victims were involved, in this case an ultimate factual issue that Δ wasn’t present/the robber was determined at previous trial

Question 9

when does double jeopardy attach?

Answer 9

for jury trials, once jury is selected & sworn in; for bench trials, once 1st witness is sworn in

Question 10

does double jeopardy apply to appeals?

Answer 10

double jeopardy generally does not apply to appeals because appeals considered implied waiver except when there is insufficient finding of evidence ruling on appeal (state had it’s chance & lost)

Question 11

separate sovereign doctrine

Answer 11

following conviction or acquittal after given offense, state can’t try Δ again, but separate sovereign can (each state considered separate sovereign & can convict multiple times but some states like NH don’t follow doctrine & federal gov’t typically doesn’t prosecute after a state does)

Question 12

sequential trial scenario precludes…

Answer 12

…2nd trial after conviction or acquittal, & depending on the circumstances, for mistrials

Question 13

sequential trial scenario: mistrials (standard, 3 scenarios)

Answer 13

standard = mistrial manifest necessity (did court have to declare mistrial, if there wasn’t manifest need for court to call mistrial, then double jeopardy doesn’t attach)

3 scenarios: 1) jury’s fault (e.g., hung jury) = usually can retry; 2) Δ’s fault = usually can retry; 3) state’s fault = if Δ asks for mistrial resulting from prosecution’s mistake, usually can retry but if prosecutor tries to deliberately cause mistrial, double jeopard bars retrial (Oregon v. Kentucky)

Question 14

multiple punishment scenario

Answer 14

can come up in 1st or subsequent trials; cannot provide multiple punishments for what is deemed to be the same offense (ex. Whalen v. US = Δ was sentenced to conseuctive sentences for rape and murder while committing rape, where rape should have been considered lesser included offense + Brown v. Ohio = Δ joyriding & auto theft considered same offense but Δ erroneously punished for each offense because one took place one day & the other took place 9 days later & separate dates for charges does not constitute separate offenses for otherwise same offenses)