Double Jeopardy

Question 1

What is double jeopardy? When does the right attach?

Answer 1

Under 5A, person may not be retried fro the same offense once jeopardy attached. Jeopardy attaches when:

• jury trial: swearing in of jury
• bench trial: swearing in of first witness
• juvenile proceedings: commencement of proceedings

Question 2

What are the 5 exceptions to double jeopardy prohibition, i.e. when do we permit retrial of D even if jeopardy has attached?

Answer 2

• first trial ended in hung jury
• trial discontinued due to manifest necessity/at behest of D
• successful appeal as long as reversal not based on insufficient evidence (OK if based on weight of evidence) Note: cannot be retried of greater offense but harsher sentence may be imposed as long as not due to vindictiveness for appealing and not death penalty
• D breaches plea bargain
• D elects to have multiple offenses tried separately, jeopardy only attaches to one tried

Question 3

What is considered the “same offense” for purposes of double jeopardy?

Answer 3

Offenses are the same unless EACH crime requires proof of an additional element/fact that the other does not (even tho need same facts to prove both). (Blockburger test)

Includes lesser offenses and greater offenses. e.g., robbery includes larceny and assault (both lesser), so if D is tried for robbery cannot later be tried for larceny and vice versa.

BUT if two crimes = same offense (e.g. robbery + using weapon during crime), multiple punishments are allowed for same offense IF provided for by statute.

Question 4

What are the two exceptions to the rule that is D is tried for lesser offense cannot be tried later for greater offense?

Answer 4

1. unlawful conduct may be subsequently used to prove greater offense if (a) it did not occur at the time for prosecution of the lesser offense OR victim dies later, OR (b) was not discovered despite due diligence
2. when D pleads guilty of lesser offense, P can proceed to prosecute for greater offense

Question 5

What are the steps of analysis in a Double Jeopardy problem?

Answer 5

Ask:

1. Is D charged with two crimes based on same conduct?
2. Did legislature intent to allow conviction of both crimes based on same conduct?
3. Does each crime require proof of an additional fact that the other does not?

Question 6

Can D be indicted for a crime the conduct of which was previously used to enhance sentence of another crime under double jeopardy?

Answer 6

Yes.

Question 7

What is the separate soveriegn rue?

Answer 7

Separate sovereigns MAY try D for same offense. So, federal & state govt could try someone for same offense, or state & state. But NOT city in state and that same state.