Fifth Amendment

Question 1

Double Jeopardy

Answer 1

Under the Fifth Amendment, a person may not be retried for the same offense once jeopardy has attached.

Question 2

Attachment

Answer 2

In a jury trial: at the empaneling and swearing in of the jury

In a bench trial: when the first witness is sworn

Question 3

Exceptions to Jeopardy

Answer 3

Hung jury

Manifest necessity to discontinue the trial

Conviction reversed on appeal based on the weight (not sufficiency) of the evidence
-cannot retry for a greater offense

Breach of plea bargain

Question 4

Same Offenses

Answer 4

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require.

Question 5

Included Offenses

Answer 5

Jeopardy for a greater offense bars retrial for lesser included offenses. Jeopardy for lesser included offenses bars retrial for greater offenses.

Question 6

Privilege Against Self-Incrimination

Answer 6

The Fifth Amendment privilege against self-incrimination can be asserted by anyone in any type of case, but only if the answer to the question might tend to incriminate them.

Applies only to testimonial evidence; not physical evidence.

Question 7

Burdening the Privilege

Answer 7

Prosecutor may not comment on a defendant’s silence after being arrested and given Miranda warnings, but can comment on a defendant’s silence before the Miranda warnings.

Prosecutor may not comment on a defendant’s failure to testify at trial.

Question 8

Immunities

Answer 8

A witness can be compelled to answer questions if granted immunity from prosecution. This kind of testimony is involuntary and cannot be used for impeachment if that witness is later prosecuted.