Double Jeopardy Flashcards
What is double jeopardy?
5th Amendment: “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
It applies to all crimes.
When does DJ attach?
In a bench trial, it attaches when the first witness is sworn and the court begins to hear evidence.
In a jury trial, it attaches when the jury is impaneled and sworn.
What is the same offense?
Crimes constitute the same offense for DJ purposes if one set of facts proves them both.
When a second offense contains all of the elements of a first offense, plus additional elements, then the first offense is a lesser-included offense of the second.
Once jeopardy has attached for the lesser-included offense, retrial is barred for the greater offense. Likewise, once jeopardy has attached for the greater offense, retrial is barred for the lesser-included offense.
What are exceptions to lesser-included offense?
When at the time jeopardy attaches for the first offense all the elements of the second offense have not occurred, a later trial for the greater offense is permitted.
If a D requests separate trials as to closely related trials, he has waived any claim to DJ.
Separate trials and separate punishments do not violate DJ and are proper when one unlawful act produces more than one separate criminal offense.
What is the duel sovereignties doctrine?
The DJ prohibition odes not prevent dual prosecution by separate sovereigns.
When can there be a retrial after DJ attaches?
Retrial is permitted if:
- the D successfully appeals his conviction because of an error made at trial, or
- the appeal was granted because of the amount of evidence supporting the conviction.
Retrial for a greater offense is unconstitutional after a conviction for a lesser-included offense.
Retrial after Mistrial
It is permitted if mistrial has been granted on the D’s motion.
Retrial is not permitted when the D objects to a mistrial, unless the discretion of the court a manifest necessity exists that justice can only be served by declaring a mistrial. Necessity caused by the prosecution may be invalid grounds for a retrial.
Retrial is not permitted after an acquittal.
May the prosecution appeal?
The prosecution’s right to appeal is more limited than the D’s right to appeal. It may appeal without the bar of DJ:
- when a judge grants an acquittal on an issue not related to the guilt or innocence of the D, the prosecution may appeal the dismissal; and
- the prosecution is allowed to appeal whenever the appeal can be decided without subjecting the D to a second trial.
How does DJ apply to sentencing?
DJ is not an absolute bar to the imposition of a harsher sentence. However, the judge must make an affirmative showing of new information on the record.
What is collateral estoppel?
The doctrine of collateral estoppel which precludes relitigation between the same parties of issues actually determined at an earlier trial, is embodied in the guarantee against double jeopardy.
It is only applicable when the very issue sought to be precluded in the later prosecution has been necessarily determined in the earlier trial.
