DOUBLE JEOPARDY

Question 1

WHEN JEOPARDY ATTACHES

Answer 1

• Under 5th am, a person may not be retried for same offense once jeopardy has attached.
• Jeopardy attaches in a jury trial at empaneling & swearing of jury.
• In bench trials jeopardy attaches when first witness is sworn.
• Commencement of a juvenile proceeding bars a
  subsequent criminal trial for same offense.
• Jeopardy generally does not attach in civil proceedings other than juvenile proceedings.

Question 2

EXCEPTIONS PERMITTING RETRIAL

Answer 2

• Certain exceptions permit retrial of D even if jeopardy has attached:
• A state may retry D whose first trial ends in a hung jury.
• A trial may be discontinued & D reprosecuted for same offense when there is manifest necessity
  to abort original trial/when termination occurs
  at the behest of D on any ground not constituting
  acquittal on the merits.
• A state may retry D 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 evidence.
• However, on retrial, D 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 jury found that death penalty was not appropriate in first trial, a death sentence may not be imposed at 2nd trial.
• Charges may be reinstated after D breaches their plea bargain.
• If D could have been tried for multiple charges
  in a single trial, but D elects to have offenses tried separately, jeopardy does not attach to first trial for the other charges.

Question 3

General Rule—When Two Crimes Not the Same
Offense

Answer 3

• 2 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.

Question 4

Cumulative Punishments for Offenses Constituting the Same Crime

Answer 4

• Even if two crimes constitute same offense under this test, multiple punishments are permissible if there was a legislative intent to have the cumulative punishments (ex. D can be sentenced both for robbery & using a weapon during commission of a crime if statutes so provide).

Question 5

Lesser Included Offenses

Answer 5

• 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, crime of robbery includes the 2 lesser crimes of larceny & assault.
• If D is tried for robbery, they cannot be retried for lesser included offense of larceny.
• Similarly, if D is first put in jeopardy for lesser included offense (larceny), they cannot later be tried for greater offense (robbery).

Question 6

Lesser Included Offenses: Exception—New Evidence

Answer 6

• An exception to double jeopardy bar exists if unlawful conduct that is subsequently used to prove greater offense
  (1) has not occurred at time of prosecution for
  the lesser offense or
  (2) has not been discovered despite due diligence. - Similarly, a retrial for murder is permitted if vic dies after attachment of jeopardy for battery.

Question 7

Lesser Included Offenses: Effect of Plea on Related Offense

Answer 7

• A state may continue to prosecute a charged offense despite D’s guilty plea to a lesser included or “allied” offense stemming from same incident.

Question 8

Conduct Used as a Sentence Enhancer

Answer 8

• The Double Jeopardy Clause is not violated when a person is indicted for a crime the conduct of which was already used to enhance D’s sentence for another crime.

Question 9

Subsequent Civil Actions

Answer 9

• The Double Jeopardy Clause prohibits only repetitive criminal prosecutions.
• Thus, a state generally is free to bring a civil action against D even if D has already been criminally tried for the conduct out of which
  the civil action arises.
• Similarly, gov may bring a criminal action even though D has already faced civil trial for the same conduct unless it is clear from the statutory scheme that purpose/effect of statute is to impose a criminal penalty.

Question 10

SEPARATE SOVEREIGNS

Answer 10

• 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 & federal govs or by 2 states, but not by a state & its municipalities.

Question 11

Tip

Answer 11

Double jeopardy questions on the MBE occasionally raise the separate sovereign issue. The rule is simple: Separate sovereigns can try D
for the same offense. Beware of facts that try to divert you from this easy issue (ex. statements about juries being empaneled or witnesses sworn in—things that go to attachment). Attachment does not matter if there are two separate sovereigns. On the other hand, remember that municipalities are considered part of the state, and so both a state and its municipality cannot validly try a defendant for the same offense.

Question 12

APPEALS BY PROSECUTION

Answer 12

• Even after jeopardy has attached, prosecution may appeal any dismissal on D’s motion that does not constitute an acquittal on the merits.
• Also, Double Jeopardy Clause does not bar appeals by prosecution if a successful appeal would not require a retrial.
• There is no bar to a gov appeal of a sentence pursuant to statute permitting such review.
• However, if the jury fails to impose the death penalty, prosecution may not seek death penalty on retrial after successful appeal.

Question 13

COLLATERAL ESTOPPEL

Answer 13

• Under doctrine of collateral estoppel, D may
  not be tried/convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent w/ one required for conviction.