Double Jeopardy

Question 1

Fifth Amendment Double Jeopardy Language

Answer 1

… Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb by the same sovereign.

Question 2

When Jeopardy Attaches

Answer 2

Under the fifth amendment, a person may not be retried for the same offense once jeopardy attaches.

Jeopardy attaches at the following times:

Jury Trial – When the jury is empaneled and sworn

Bench Trial – When the first witness is sworn

Guilty Plea – When the court accepts the defendant’s plea unconditionally

Question 3

Civil Proceedings (Double Jeopardy)

Answer 3

The double jeopardy clause does not apply in civil proceedings (other than juvenile proceedings)

Question 4

Same Offense (Double Jeopardy)

Answer 4

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.

Question 5

Cumulative Punishments

Answer 5

Even if two crimes constitute the same offense, multiple punishments are permissible if there was a legislative intent to have the cumulative punishments

Question 6

Greater and Lesser Includes Offenses

Answer 6

Attachment of jeopardy for a greater offense bars retrial for lesser included offenses.

Likewise, attachment of jeopardy for a lesser included offense bars retrial for a greater offense.

MEANING - when there are two crime and only one requires proof an an additional element, they are the same offense and subject to double jeopardy

Question 7

Exception - New Evidence

Answer 7

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

ADDITIONALLY, a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery

Question 8

Same Sovereign

Answer 8

Double jeopardy bars retrial for the same offense by the same sovereign only.

State and federal government are not the same sovereign

Different states are not the same sovereign

States and municipalities within them are the same sovereign

Question 9

GA Double Jeopardy

Answer 9

GA generally follows the double jeopardy rules as the federal courts

However, GA does not follow the same sovereign rule with respect to crimes prosecuted in federal court.

Prosecution is barred in GA courts if:
1) the defendant was formerly prosecuted in a federal district court;
2) the federal prosecution resulted in either a conviction or an acquittal; and
3) the GA prosecution would be for the same conduct, unless each prosecution requires proof of a fact not required in the other or the crime was not consummated when the former trial began

Question 10

Exceptions to Permit Retrial Even if Jeopardy has Attached

Answer 10

1) A state may retry a defendant whose first trial ends in a hung jury

2) 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 bequest of the defendant on any ground not constituting acquittal on the merits

3) A state may retry a defendant who has successfully appealed a conviction unless the grounds for reversal was insufficient evidence to support a guilty verdict.

4) charges may be reinstated after a defendant breaches their plea agreement

5) If a defendant could have been tried for multiple charges in a single trial, but the defendant elects to have offenses trial separately, jeopardy does not attack to the first trial for the other charges.

Question 11

Collateral Estoppel

Answer 11

A defendant may not be tried or convicted of a crime if a prior prosecution by that sovereign resulted in a factual determination inconsistent with one required for conviction