Double jeopardy Flashcards
Double jeopardy rule
once jeopardy attaches, person can’t be retried for same offense
When does jeopardy attach in jury trial?
when jury is sworn
When does jeopardy attach in a bench trial?
when first witness sworn
Jeopardy does not generally attach when proceedings are…
civil
e.g. it is OK to have a criminal prosecution for tax fraud, and then a civil proceeding to collect the back taxes
Exceptions permitting retrial (4)
1) jury unable to agree upon a verdict (hung jury)
2) mistrials for manifest necessity (e.g. medical emergencies)
3) retrial after successful appeal (this is NOT double jeopardy)
4) breach of an agreed upon plea bargain by D
Upon retrial after a successful appeal, the D cannot be retried for…
a more serious offense than he we was convicted of at first trial
e.g. manslaughter/murder
Exceptions permitting retrial: when D breaches plea bargain agreement…
his plea and sentence and be withdrawn and original charges reinstated
When D agree as part of plea bargain to testify against co-D, she is agreeing…
for subsequent trials, even if years later.
2 crimes do NOT constitute same offense (and no DJ violation) if…
each crime requires proof of add’tl element that other does not
Lesser included offenses: being put in jeopardy for a greater offense….
BARS RETRIAL for any lesser included offense AND VICE VERSA
e.g. robbery includes 2lesser crimes of larceny and assault.
if tried for robbery, you CANNOT be retried for the lesser included offense of larceny
if you are first put in jeopardy for the lesser included offense (larceny), you CANNOT later be retried for the greater offense (robbery)
Exception to lesser / greater included offense rule
Battery/murder
If D tried and convicted on battery, and vic later dies due to injuries, D can THEN be prosecuted for murder
Separate sovereigns: DJ bars retrial for same offense by…
SAME sovereign
diff sovereigns: fed/state, 2 states
same sovereign: state and municipalities
