Double Jeopardy

Question 1

What is the general rule regarding double jeopardy?

Answer 1

Once D is placed in jeopardy for an offense, he can never again be tried for that same offense.

Question 2

When is a second prosecution for the same offense NOT barred?

Answer 2

If the first prosecution ended before jeopardy attaches.

Question 3

When are acquittals final?

Answer 3

Always. No second trial is permitted.

Question 4

For jeopardy purposes, what is an acquittal?

Answer 4

Any finding that evidence is insufficient made by trial or appellate court.

Question 5

If a defendant is convicted of a lesser included offense, does jeopardy attach as it pertains to the original, higher offense?

Answer 5

Yes. Conviction of a lesser included offense is an implied acquittal of charged crime.

Question 6

What are the exceptions to the Double Jeopardy rule?

Answer 6

1. hung jury
2. a mistrial is declared for manifest necessity
3. a defendant is acquitted due to a variance between the allegations and the proof, or
4. the prosecution is for conspiracy after some of the alleged overt acts of that conspiracy have already been prosecuted.

Question 7

When does jeopardy attach?

Answer 7

i. jury trial: when jury is sworn ii. bench trial: when first witness is sworn.

Question 8

What is Virginia’s jeopardy law regarding DWIs?

Answer 8

If someone is prosecuted for DWI and reckless driving due to the same act, and is convicted of one, the court must dismiss the other.

Question 9

What is Virginia’s law regarding successive prosecutions under similar offenses?

Answer 9

If the same act is a violation of two or more statutes, conviction under one statute bars prosecution under the others.

Question 10

What is Virginia’s law regarding separate sovereign prosecutions?

Answer 10

If the act violates state and federal law, prosecution under the federal statute bars prosecution under the state statute. Federal prosecution commences upon return of GJ indictment or filing of an information (i.e. charges)

Question 11

Can the double jeopardy defense be waived?

Answer 11

Yes.

Question 12

When is the DJ defense waived?

Answer 12

If it is not raised before the second trial.

Question 13

In Virginia, the prosecution can only appeal what kinds of dismissals?

Answer 13

Certain adverse pre-jeopardy rilings (such as motions to suppress evidence seized in vio. of 4th am.) and in reversals of convictions in felony cases by the court of appeals.

Question 14

A defendant can be prosecuted in a single proceeding for charges involving….

Answer 14

multiple victims.

Question 15

What is the rule for prosecutions after a defendant’s successful appeal?

Answer 15

After successful appeal, D can’t be charged for higher offense than what he was convicted of in the first trial.

Question 16

If a defendant was convicted of a lesser offense in a court not of record, and he appeals de novo for a new trial, what offenses may he be tried and convicted of in the new trial?

Answer 16

The lesser offense. He may not be tried and convicted for the greater offense in the new trial.

Question 17

What is the collateral estoppel rule?

Answer 17

A fact once determined by a court of competent jurisdiction cannot again be litigated by the same parties.

Question 18

A defendant waives a collateral estoppel defense if…

Answer 18

he does not raise it before verdict in the second trial.

Question 19

The prosecutor may not comment on the defendant’s failure to…

Answer 19

testify at his own trial.

Question 20

A defendant’s spouse may not be compelled to testify against the defendant in a criminal case, except for:

Answer 20

1. in a prosecution for an offense committed by one against the other or against a minor child of either
2. in a case in which either is charged with forgery of the other’s signature
3. in any proceeding relating to a violation of the laws pertaining to criminal sexual assault.

Question 21

Neither spouse, without consent of the other, may be…

Answer 21

examined as to any communication privately made by one to the other while marries.

Question 22

What is the writ of error rule?

Answer 22

If a person sentenced by a circuit court to death or confinment in a penitentary asks to apply for a writ of error, the court must postpone the execution of its sentence for such time as it may deem proper. In any other case, the court may postpone.