Double Jeopardy

Question 1

Double Jeopardy generally

Answer 1

Under the fifth amendment, a person may not be retried for the same offense once Jeopardy has attached

Question 2

When jeopardy attaches

Answer 2

Attaches in a jury trial at the empaneling and swearing of the jury

In bench trials, attaches when the first witness is sworn

Commencement of a juvenile proceeding bars a subsequent criminal trial for same offense

Generally does not attach in civil proceedings other than juvenile proceedings

Question 3

Exception - hung jury

Answer 3

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

Question 4

Exception - medical emergency

Answer 4

a trial may be discontinued and the defendant reprosecuted for the same offense when there is a manifest necessity to abort the original trial or when termination occurs at the behest of the defendant on any ground not constituting acquittal on the merits

Question 5

Exception - successful appeal

Answer 5

A state may retry a defendant 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 of the evidence

However, on retrial, a defendant 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 death penalty not appropriate in first, not appropriate in second

Question 6

Exception - breaches plea

Answer 6

Charges may be reinstated after a defendant breaches their plea bargain

Question 7

Exception - offenses tried separately

Answer 7

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

Question 8

When two crimes are not the same offense

Answer 8

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 facts may be necessary to prove both crimes

Question 9

Lesser included offenses

Answer 9

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

Exception - new evidence

Question 10

Lesser included offenses exception - new evidence

Answer 10

An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense
- has not occurred at the time of prosecution for the lesser offense, or
- has not been discovered despite due diligence

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

Question 11

Separate sovereigns

Answer 11

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 and fed or by two states
- but not by a state and its municipalities