Double jeopardy

Question 1

Double Jeopardy (5th amendment)

Answer 1

A person may not be retried for the same offense once jeopardy attaches
-Jury trial: attaches at empaneling and swearing in of jury
-Bench trial: attaches when first witness is sworn

Question 2

Exceptions permitting retrial

Answer 2

1. Hung jury (could not come to conclusion)
2. Manifest necessity (i.e., D had medical emergency)
3. D successfully appeals conviction unless grounds for reversal was insufficient evidence to support a guilty verdict
   -On retrial, D may not be tried for a greater offense
4. D breaches his plea bargain
   -i.e., refusing to testify at retrial after agreeing to testify as part of plea bargain
5. D elects to try multiple charges separately

Question 3

“Same offense”

Answer 3

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require
-i.e., manslaughter and hit and run have different elements

Unless there was legislative intent to have cumulative punishments
-i.e., robbery and using a weapon during the commission of a crime

Question 4

Lesser included offenses

Answer 4

Attachment of jeopardy for a greater offense bars retrial for lesser included offenses and vice versa
-i.e., robbery includes the lesser crimes of larceny and assault

Question 5

New evidence exception

Answer 5

When unlawful conduct has no occurred at the time of prosecuting the lesser offense or has not been discovered despite due diligence
-i.e., if a person in a coma resulting from battery dies, then a retrial for murder is permitted

Question 6

Separate sovereigns

Answer 6

State and federal governments can prosecute a defendant separately for the same conduct
-But a state and municipality are the same sovereign