Double Jeopardy Flashcards
When does jeopardy attach?
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.
What are the exceptions permitting retrial?
Certain exceptions permit retrial of a defendant even if jeopardy has attached:
• A state may retry a defendant whose first trial ends in a hung jury.
• 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 defendant on any ground not constituting acquittal on the merits.
• 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.
• Charges may be reinstated after a defendant breaches their plea bargain.
• 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.
What is the general rule when two crimes are 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, even though some of the same facts may be necessary to prove both crimes.
What are 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).
What are the lesser included offenses?
Attachment of jeopardy for a greater offense bars retrial for lesser included offenses. Attachment of jeopardy for a lesser included offense bars retrial for a greater offense.
For example, the crime of robbery includes the two lesser crimes of larceny and assault. If a defendant is tried for robbery, they cannot be retried for the lesser included offense of larceny. Similarly, if the defendant is first put in jeopardy for the lesser included offense (larceny), they cannot later be tried for the greater offense (robbery).
What are the exceptions to 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.
b. Effect of Plea on Related Offense
A state may continue to prosecute a charged offense despite defendant’s guilty plea to a lesser included or “allied” offense stemming from the same incident.
Can conduct be 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.
How does double jeopardy affect 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 government 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.
What are separate sovereigns under double jeopardy?
The constitutional prohibition against double jeopardy does not apply to trials by separate sovereigns. Thus, 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.
What are appeals by the prosecution and how do they affect double jeopardy?
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.
