double jeopardy and self incrimination

Question 1

when jeopardy attaches

Answer 1

jeopardy attaches in a jury trial whent eh jury is worn.

bench trila = first witness is sworn

examples permitting retrial
1. Jury is unable to agree upon a verdict.

2. Mistrials for manifest necessity.
3. A retrial after a successful appeal is not double
   jeopardy. Note: Upon retrial after a successful
   appeal, the Defendant cannot be retried for a more
   serious offense than he was convicted of at the
   first trial
4. Breach of an agreed upon plea bargain by the
   defendant. Rule: When the defendant breaches
   a plea bargain agreement, his plea and sentence
   can be withdrawn and the original charges reinstated.

Question 2

same offense/blockburger test

Answer 2

2 crimes do not constitute teh same offense if ecah crime rquires proof of an ADDITIONAL ELEMENT that the other does not

Question 3

greater and lesser offense exclusions

Answer 3

Lesser included offenses: Being put in jeopardy
for a greater offense bars retrial for any lesser
included offense. Example: The crime of robbery
includes the two lesser crimes of larceny and assault.
If you are tried for robbery, you CANNOT be
retried for the lesser included offense of larceny.
Similarly, if you are first put in jeopardy for the lesser
included offense (larceny), you CANNOT later
be retried for the greater offense (robbery).

Exception: If a Defendant is tried and convicted on
a charge of battery, and the victim of the battery
later dies due to the injuries, the person can also
then be prosecuted for murder.

Note: Double jeopardy bars retrial for the same
offense by the same sovereign. (think different states or state and federal)

Question 4

Privilege against self incrimination

Answer 4

The Fifth Amendment Privilege against self-incrimination
can be asserted by anyone in any type of
case. Anyone asked a question under oath in any
kind of case, wherein the response might tend to
incriminate her is entitled to a Fifth Amendment
privilege.

MUST ASSERT FIRST TIME ASKED OR YOU WAIVE IT

privilege must be claimed in civl proceedings to prevent from later being waived in criminal proceedings

Question 5

Scope of 5A (right to no self incrim)

Answer 5

Protects from compelled testimony

5A does not protect citizens from having gov use physical evidcen to incrim them like

1. A person’s blood sample;
2. A person’s handwriting sample;
3. A person’s voice sample;
4. A person’s hair sample.

Note - SCOTUS says can take DNA cheeck swab after an arreset for SERIOUS crime

seizure of incim document
5A does not prohibit law neforcemtn from searching for and seizing docs tending to incrim. The privilege protects against being COMPELLED TO COMMUNICAT EINFOMRATION (not past communication)

Question 6

5A and prosecutors

Answer 6

PRO can’t make negative commnet on D failing to testify or choosing to remain silent

Exception: The prosecutor can comment on the
defendant’s failure to take the stand when the
comment is in response to defense counsel’s assertion
that defendant was not allowed to explain
his side of the story.

Also note: In 2013 the Supreme Court held that if
a suspect chooses to remain silent before police
read him his Miranda rights, that silence can be
used against him in court. (e.g. chatting nicely with police, asking about V and then you freeze up)

if PRO impermissibly comments on D’s silence, then harmless error test applies (so may not be overturned on conviction)

Question 7

when is 5A eliminated

Answer 7

1. grant of immunity
2. no possible incrimination (e.g. statute of limitation has run, you can’t assert 5th A)
3. waiver (criminal D who takes witness stand waives 5th A protections)