Double Jeopardy

Question 1

Which amendment does the concept of jeopardy stem from?

Answer 1

5th Amendment

Question 2

What is rule regarding jeopardy?

Answer 2

A person may not be retried for the same offense once jeopardy has attached (i.e., “double jeopardy”)

Question 3

When does jeopardy attach in a jury trial?

Answer 3

In a jury trial, at the empaneling and swearing of the jury

Question 4

When does jeopardy attach in a bench trial?

Answer 4

In bench trial, when first witness is sworn

Question 5

T or F: Commencement of a juvenile proceeding bars a subsequent criminal trial for the same offense

Answer 5

True

Question 6

Under what circumstances may multiple punishments for same offense be permissible?

Answer 6

Where legislative intent (i.e., statute) allowing cumulative punishments

Question 7

Does jeopardy attach in civil proceedings?

Answer 7

Generally no (except for juvenile proceedings)

Question 8

What exceptions permit retrial?

Answer 8

1) hung jury
2) manifest necessity (emergency)
3) D’s successful appeal*
4) D breaches plea bargain
5) D elects to have offenses tried separately

Question 9

Can the state retry a D following D’s successful appeal on any grounds?

Answer 9

No; if grounds for reversal insufficient evidence, can’t retry; however, if based on weight of evidence, can retry, but not for greater offense

Question 10

What constitutes “same offenses?”

Answer 10

Two crimes are the same offense unless each crime requires proof of an additional element that the other doesn’t

Question 11

What effect does the attachment of jeopardy have on lesser included offenses?

Answer 11

Bars retrial for lesser included offenses (AND greater offenses)

Question 12

How can new evidence provide an exception to double jeopardy?

Answer 12

Provides exception if unlawful conduct that’s subsequently used to prove greater offense 1) hasn’t occurred at time of prosecution for lesser offense, OR 2) has not been discovered despite due diligence

Question 13

What happens if D is tried for battery and victim dies following attachment of jeopardy?

Answer 13

D can be tried for murder

Question 14

How does a plea deal impact prosecution where multiple offenses involved?

Answer 14

State may continue to prosecute offense EVEN IF D has guilty plea to lesser offense from same incident

Question 15

T or F: Double jeopardy violation occurs if person indicted for crime the conduct of which was previously used to enhance D’s sentence for another crime

Answer 15

False

Question 16

Does double jeopardy apply to separate sovereigns?

Answer 16

No

Question 17

Are states and municipalities considered the same sovereign?

Answer 17

Yes

Question 18

Per collateral estoppel, what happens to D if a prior prosecution by a given sovereign resulted in a factual determination inconsistent with one required for conviction?

Answer 18

D cannot be tried or convicted for new crime

Question 19

Under what circumstances may the prosecution appeal?

Answer 19

1) any dismissal on D’s motion that isn’t an acquittal on the merits (even after jeopardy has attached)
2) where successful appeal wouldn’t require retrial
3) where appeal of sentence pursuant to statute permitting such review

Question 20

T or F: If just fails to impose death penalty, prosecution may not seek death penalty on retrial after successful appeal

Answer 20

True