Double Jeopardy

Question 1

When Jeopardy Attaches

Answer 1

• under 5th Am, person can’t be retried for same offense once jeopardy has attached
• attaches at empaneling + swearing of jury, or when first witness sworn in bench trial
• commencement of juvenile proceeding bars subsequent criminal trial for same offense, although jeopardy generally doesn’t attach in other civil proceedings

Question 2

Retrial of Def - Manslaughter vs Murder

Answer 2

• if def is convicted of manslaughter at 1st trial but then successfully appeals to get new trial, the most serious offense def can be retried for = manslaughter

Question 3

Exceptions Permitting Retrial

Answer 3

• 1st trial ends in hung jury
• original trial discountinued due to manifest necessity or termination at behest of def on any ground not constituting acquittal on the merits
• def successfully appealed original conviction (unless ground for reversal was insufficient evidence to support a guilty verdict)
  -> retrial ok when reversal based on weight of ev, not sufficiency
  -> rule against retrying for greater offense than initial conviction
• charges reinstated after def breaches plea bargain
• def could’ve been tried for multiple charges in a single trial but elected to have the offenses tried separately

Question 4

New Evidence Exception to Double Jeopardy Rule Regarding Lesser vs. Greater Offenses

Answer 4

Exception exists if unlawful conduct that is subsequently used to prove the greater offense:
1) has not occurred at time of prosecution for lesser offense OR
2) has not been discovered despite due diligence

• also, retrial for murder permitted if victim dies after attachment of jeopardy for battery

Question 4

Rules for Determining Whether Same Offense

Answer 4

• two crimes = same offense UNLESS each crime requires proof of an additional element that the other doesn’t require, even though some of the same facts may be necessary to prove both crimes
• even if two crimes constitute same offense, multiple punishments are permissible if legislative intent to have cumulative punishments
• BUT attachment of jeopardy for greater offense bars retrial for lesser included offenses + vice versa
• state may continue to prosecute a charged offense despite def’s guilty plea to lesser included or “alied” offense stemming from same incident

Question 5

Conduct Used as a Sentence Enhancer

Answer 5

• double jeopardy not violated when person is indicted for crime the conduct of which was already used to enhance def’s sentence for another crime (i.e. you can use conduct to enhance a sentence more than once)

Question 6

Subsequent Civil Actions

Answer 6

• double jeopardy prohibits only repetitive criminal prosecutions -> state can generally bring civil actions even if def has been criminally prosecuted for same conduct (generally vice versa too, unless statute’s purpose is clearly to impose crim penalty)

Question 7

Separate Sovereigns

Answer 7

• constitutional prohibition against double jeopardy doesn’t apply to trial by separate sovereigns
• CAN be tried for same conduct by both state + fed AND by two different states
• BUT can’t be tried for same conduct by a state and its municipalities
• don’t be fooled if q includes distractor facts re attachment - attachment issue doesn’t matter if it’s separate sovereigns b/c double jeopardy wouldn’t bar the second trial

Question 8

Appeals by Prosecution

Answer 8

• even after jeopardy has attached, prosecution can appeal any dismissal on def’s motion that doesn’t constitute an acquittal on the merits
• also doesn’t bar appeals by prosecution if a successful appeal would not require retrial
• generally no bar to gov appeal of a sentence pursuant to a statute permitting such review BUT if jury fails to impose death penalty, prosecution may not seek DP on retrial after successful appeal

Question 9

Collateral Estoppel

Answer 9

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