Double Jeopardy Flashcards
Blockburger test
Under the Blockburger test, offenses are separate offenses for purposes of double jeopardy when each offense requires proof of an element that the other does not.
Felony murder is considered the same offense as the underlying felony.
Multiple prosecution for the same offense
Multiple prosecution for the same offense does not violate Double Jeopardy if:
(a) The offenses have different victims;
(b) The offenses are being punished by separate sovereigns; or
(c) Jeopardy has attached with respect to a lesser included offense prior to the occurrence of an event necessary to establish the greater offense, e.g.:
- A robbery conviction,
- Followed by the death of the robbery victim, caused by the robbery,
- Followed by indictment for felony murder arising from the robbery.
Attachment of jeopardy
Jeopardy attaches:
- In a jury trial, when the jury is sworn in;
- In a bench trial, when the first witness is sworn in.
Attachment of jeopardy: pretrial procedure
Before the trial begins, the prosecutor can add, drop, or change the charges against a defendant without Double Jeopardy problems.
Charging and punishment
A defendant can be charged and tried for an offense and a lesser-included at the same trial, but Double Jeopardy only allows the defendant to be convicted of one offense.
Effect of acquittal
If the defendant is acquitted, it is the end of the case and the defendant cannot be retried by the same jurisdiction for the same offense.
The prosecution cannot appeal from an acquittal.
Effect of conviction
A defendant cannot be retried by the same jurisdiction for the same offense if:
(a) She is convicted and she does not appeal;
(b) She is convicted and her conviction is affirmed;
(c) Her conviction is reversed on appeal on a finding of insufficient evidence; or
(d) The prosecution asks for a mistrial because of an inability to locate a witness.
But a defendant generally may be retried if the conviction is reversed on other bases.
Effect of mistrial
The defendant may be retried if the mistrial was due to manifest necessity—for example, if:
- The jury was deadlocked; or
- Defense counsel engaged in misconduct.
Otherwise, the defendant cannot be retried by that jurisdiction.
Issue preclusion
The Double Jeopardy Clause encompasses the doctrine of issue preclusion.
Where a jury acquits a defendant of an offense that is a lesser included offense of another offense over which the jury deadlocks, the jury determination that the defendant did not commit the lesser included offense precludes the prosecution from retrying the defendant on the greater offense.
