Double Jeopardy

Question 1

What does the double jeopardy clause prohibit?

Answer 1

Repetitive criminal prosecutions for the same crime.

Note: the double jeopardy clause does not apply to civil proceedings.

Question 2

What are the four exceptions to the double jeopardy rule that permit retrial?

Answer 2

1) A hung jury
2) a mistrial for manifest necessity (e.g. where a defect was found in the indictment during trial that could not be cured by amending it)
3) a successful appeal, unless reversal on appeal was based on the insufficiency of evidence presented by the prosecution at trial; or
4) a breach of the plea agreement by the defendant

Question 3

when does double jeopardy attach?

Answer 3

1) in a jury trial– when the jury is sworn
2) bench trial– when the first witness is sworn
3) guilty plea– when the court accepts the plea unconditionally

Question 4

How to determine when there is the “same offense?”

Blockburger test

Answer 4

MBE– two offenses are not the same offense for double jeopardy purposes if each contains an element the other does not.

NY– uses the transaction test, which requires that a defendant be charged with all offenses arising from any single transaction, unless:

1) the offenses have substantially different elements
2) each offense contains an element not in the other and prevents different harms
3) one is for criminal possession and the other is for use; or each offense involves harm to a different victim.