Double Jeopardy Flashcards
What is the rule of Double Jeopardy under the 5th Amendment?
A person cannot be retried for the same offense once jeopardy has attached.
* Only applies to repetitive criminal prosecutions
If D was criminally tried for X conduct, state can also bring civil action against D for same X conduct (and vice versa unless statutory purpose says otherwise)
When does jeopardy attach?
Jury Trial: When jury is empaneled and sworn in
Bench Trial: When first witness is sworn
What are the EXCEPTIONS to double jeopardy that permit retrial of the same offense?
(Important)
- Where D’s first trial ends in hung jury
- There’s manifest necessity to abort trial (ex. medical emergency)
- Where D successfully appeals conviction and it is overturned (on retrial, D can’t be tried for a greater offense than what D was convicted of)
- D breaches plea bargain (prosecution can reinstate charges)
- D elects to be tried separately for multiple charges (that could’ve been done in single trial) - jeopardy doesn’t attach to first trial for other charges
Hung jury: jury can’t decide and splits/”hangs” on issue, so prosecution can retry the offense
Manifest necessity: Ex. D has heart attack in middle of try; judge will declare mistrial and re-start the trial once D recovers
Plea bargain: Once a defendant agrees to testify as part of a plea bargain, D must testify at SUBSEQUENT trials as well. If D refuses, D is in breach of plea bargain and prosecutor can reinstate charges against her (including higher charges)
When are two crimes the “same offense”?
Two crimes are NOT the “same offense” when each crime requires proof of an element that the other does NOT require.
Both crimes can stem from a single incident/same set of facts
Manslaughter v. Hit and Run
* Manslaughter: death element
* Hit and run: fleeing the scene element
How can legislative intent affect punishment for two crimes that are considered the “same offense”?
Even if two crimes constitute the same offense, if it’s clear that legislative intent is to punish them cumulatively, multiple punishments are OK.
What happens when jeopardy attaches to a greater offense/lesser offense? What is the exception?
- Attachment of jeopardy to greater offense bars retrial for lesser included offenses
- Attachment of jeopardy to lesser included offense bars retrial for greater offense
Exception: If unlawful conduct subsequently used to prove the greater offense (1) hadn’t occurred when lesser offense was prosecuted or (2) prosecution hadn’t discovered it despite due diligence, then jeopardy doesn’t attach and greater offense can be prosecuted.
* Battery/Murder only: If D convicted of battery (and jeopardy attaches to battery), if victim subsequently dies, then prosecution can retry D for murder
Ex. Robbery has two lesser crimes of larceny and assault. If D tried for robbery, D can’t be tried for larceny. If D tried for larceny, D can’t be tried for robbery.
Battery/Murder example: Ex. D punches victim and victim goes into coma. D is convicted of battery. A year later, victim dies while still in coma. D can now be convicted of murder without violating double jeopardy rules.
“Same Offense” Under Double Jeopardy Clause - Review
If federal gov has already tried D, can state gov try D?
YES, double jeopardy prohibition does NOT apply to trials by separate sovereigns.
D can be tried for same conduct by:
* Both state and federal gov
* By two states
* NOT: By both state and its municipalities (municipalities are considered part of the state)
Note that attachment of jeopardy has no bearing on the ability of separate sovereigns to try D (for same offense)
Can prosecution appeal after jeopardy has attached?
YES, prosecution can appeal any dismissal on D’s motion that doesn’t constitute acquittal on the merits
Does collateral estoppel apply for sovereigns?
Under the doctrine of collateral estoppel, D can’t be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction.
