Kaplan Pgs 415-419 Double Jeopardy Flashcards
What is the purpose of the double jeopardy clause?
To prevent undue harassment and expense
Where does the Double Jeopardy clause come from?
The fifth amendment and it applies to the States through the due process clause of the 14th amendment
What is the wording of the double jeopardy clause?
No person shall be subject to the same offence to be put in jeopardy of life or limb
What kinds of crimes does double jeopardy apply to?
All crimes, even if they are only punishable by a fine
When does double Jeopardy attach in a non-jury trial and in a jury trial?
- nonjury: when the first witness is sworn and the court begins to hear evidence
– jury trial: when the jury is empaneled and sworn
How do you determine if crimes involve the same offence under double Jeopardy?
Crimes constitute the same offence if one set of facts proves both of them. So lesser included offences are considered to be the same offense. I.e.: robbery has the same elements as larceny, so larceny is considered to be a lesser included offence of robbery.
The separate sovereignty is doctrine for double Jeopardy does not prevent dual prosecution by separate sovereigns, so a defendant can be prosecuted for the same criminal conduct by:
– a federal court and then a state court or vice versa
– state courts in two separate states
If a defendant successfully appealed his conviction because of an error made at trial, what happens with regard to double Jeopardy?
The appeal is considered to be a waiver of a double deputy claim
When does a retrial after a mistrial constitute double Jeopardy and when doesn’t it?
- if the mistrial was granted on the defendant’s motion, then double Jeopardy does not apply
– if the retrial was objected to by the defendant, then double Jeopardy does apply unless the court decides that manifest necessity exists so that justice can only be served by declaring a mistrial
If a judge grants an acquittal after a hung jury, does double Jeopardy prevent a retrial?
Yes
What are two situations when the prosecution can appeal an adverse ruling without double Jeopardy barring a second suit?
- if the judge granted an acquittal on an issue that was not related to the guilt or innocence of the defendant
– if an appeal can be decided without subjecting the defendant to a second trial
If a defendant appeals his own conviction and gets a new trial and then is reconvicted for the same offense, does double jeopardy bar a harsher sentence the second time?
No as long as new information is on the record