Double Jeopardy & Collateral Estoppel

Question 1

What is the source and general rule with regards to “double jeopardy”?

Answer 1

5th amendment –> a person may not be retried for the “same offense” once jeopardy has attached

Question 2

When does jeopardy attach?

Answer 2

Jury trial –> swearing in of jury

Bench trial –> when 1st witness is sworn

Plea –> once plea is accepted

Question 3

Does jeopardy attach to civil proceedings?

Answer 3

Generally –> NO

Exception –> Juvenile proceedings

Question 4

What is the special rule with regards to double jeopardy and juvenile proceedings?

Answer 4

Once a juvenile proceedings are commended, a subsequent criminal trial is barred for the “same offense”

Question 5

What general issues arise under “double jeopardy”?

Answer 5

1. exceptions permitting retrial for same offense
2. definition of “same offense”
   - lesser included offenses
   - greater offense (and exceptions)
3. Separate sovereigns
4. collateral estoppel

Question 6

What are the exceptions that permit retrial EVEN where jeopardy has attached?

Answer 6

1. first trial ended in HUNG JURY
2. “manifest necessity”/behest of D- a trial may be discontinued and D reprosected when there is a MANIFEST NECESSITY to abort trial, or termination occurs at best of D on any ground not constituting acquittal on the merits
3. “breach of plea bargain” - charges may be reinstated after D breaches plea agreement
4. “Successful appeal”
5. state may retry D who has SUCCESSFULLY APPEALED a conviction UNLESS the group for reversal was INSUFFICIENT EVIDENCE to support guilty verdict
6. re-trial IS permitted if reversal is based on WEIGHT (rather than sufficiency) of the evidence
7. HOWEVER –> on re-trial, D MAY NOT be tried for a greater offense than he was convicted.
8. HOWEVER –> a harsher sentence MAY be imposed for reasons OTHER THAN vindictiveness for taking the appeal.
9. NOTE –> if jury found DEATH PENALTY was inappropriate for 1st trial, it may not be imposed at second trial

Question 7

With regards to “double jeopard” - when are two crimes the “same offense”?

Answer 7

Two crimes are the same offense UNLESS:
- EACH CRIME requires proof of an ADDITIONAL ELEMENT that the other does not

NOTE –> this is true even though some of the same facts may be necessary to prove both crimes

Question 8

What is the rule re: multiple punishments for the same offense?

Answer 8

Even if two crimes constitute the SAME OFFENSE, multiple punishments are allowed if there was LEGISLATIVE INTENT to have cumulative punishments.

EXAMPLE –> D can be SENTENCED for both robbery, and using a weapon during commission of robbery, if statute so intends

Question 9

Does jeopardy for a greater offense bar re-trial for a lesser included offense?

Answer 9

YES

Question 10

Does jeopardy for a lesser included offense bar retrial for a greater offense?

Answer 10

YES, UNLESS:

The unlawful conduct that is subsequently used to prove the greater offense:

1. has NOT OCCURRED at the time of prosecution for lesser included offense; OR
2. has not been discovered despite due diligence

SIMILARLY –> retrial for MURDER is permitted if victim dies after attachment of jeopardy for battery

Question 11

What is the rule re: double jeopardy and a plea to a related offense?

Answer 11

prosecutor may continue to prosecute charged offense despite D’s guilty plea to lesser included or allied offense e stemming from same incident

Question 12

Is double jeopardy implicated when a person is indicted for a crime which was previously used as a sentence enhancer?

Answer 12

No

Question 13

May state bring a civil proceeding based on same conduct for D was previously criminally convicted?

Answer 13

YES (and vice versa)

DJ prohibits only repeated CRIMINAL prosecutions

Question 14

What is the rule w regards to separate sovereigns?

Answer 14

DJ does not apply to prosecutions by separate sovereigns.

NOTE –> municipality and state are considered SAME sovereign

Question 15

What is the rule w/ regards to “double jeopardy” and appeals by the prosecution?

Answer 15

1. Even after jeopardy attached, prosecution may appeal any dismissal on D’s motion that does not constitute acquittal on the merits
2. DJ does NOT bar appeals by pros if successful appeal would not require a retrial
3. There is no bar to pros appealing SENTENCE as long as there is an enabling statute
4. HOWEVER –> if jury fails to impose DEATH PENALTY, prosecution may not seek death penalty on re-trial after successful appeal

Question 16

What is the rule w regards to “collateral estoppel” (issue preclusion)?

Answer 16

Under doctrine of “collateral estoppel” - D may NOT be tried or convicted of a crime if:

• a PRIOR PROSECUTION by that sovereignty;
• resulted in a FACTUAL DETERMINATION inconsistent with one required for conviction