Post-Trial Flashcards
General Appeal Rule & Rule Once Provided
Rule
There is NO CONSTITUTIONAL RIGHT TO AN APPEAL
Rule Once Provided
If post conviction review is provided, conditions which make it less available to the poor violate EQUAL PROTECTION. Therefore, counsel must be provided during the 1ST APPEAL
Double Jeopardy - Attachment
Rule
A person may not be retried for an offense after:
(1) JURY TRIAL - the empaneling and swearing of the jury
(2) BENCH TRIAL - the first witness is sworn
Double Jeopardy - Exceptions Permitting Retrial
(1) First trial ends in a HUNG JURY
(2) MANIFEST NECESSITY to abandon the original trial
(3) A D may be retried when they SUCCESSFULLY APPEAL a conviction unless the ground for reversal was insufficient evidence. ***Note: D may not be retried for a GREATER OFFENSE
(4) D BREACHES a PLEA BARGAIN
Double Jeopardy: Same Offense (Rule ; Legislative Intent)
Rule
Two crimes are the same offense unless EACH CRIME requires proof of an ADDITIONAL ELEMENT
Ex. If Crime 1 only has one additional element from Crime 2 - SAME OFFENSE
Legislative Intent
If two crimes constitute the same offense, multiple punishments are permissible where there is LEGISLATIVE INTENT to have punishments be cumulative
Double Jeopardy - Same Offense (Lesser Included Offenses)
Lesser Offense Included
(1) Attachment of jeopardy for a GREATER OFFENSE - Bars retrial for LESSER OFFENSE
(2) Attachment of jeopardy for a LESSER OFFENSE - Bars retrial for a greater offense
Exception: Where unlawful conduct used to prove greater offense (I) Has not occurred @ time of prosecution for lesser offense (II) Has not been discovered despite due diligence
Double Jeopardy- Same Offense (Sentence Enhancers)
Double Jeopardy is not violated where a person is indicted for an action which resulted in a prior sentence enhancement
Double Jeopardy - Separate Sovereigns
Person MAY be tried for same conduct by both STATE & FEDERAL government
Person MAY NOT be tried for same conduct by both STATE & MUNICIPAL VIOLATIONS
