Post-Trial Considerations

Question 1

What is the double jeopardy protection under the 5th Amendment?

Answer 1

Protects against second prosecution for same offense after acquittal/conviction and against ,multiple punishments for the same offense.

Question 2

How is the “same offense” considered?

What is the result of this with regard to successive prosecutions of greater and lesser included offenses?

Answer 2

If a defendant’s conduct may be prosecuted as two or more crimes, then the Blockburger test is applied to determine whether the crimes constitute the same offense for double jeopardy purposes. Under this test, each crime must require the proof of an element that the other does not in order for each to be considered as a separate offense.

As a consequence of Blockburger, the Double Jeopardy Clause generally bars successive prosecutions for greater and lesser included offenses.

Question 3

What is a “lesser included” offense?

Answer 3

A lesser included offense is one that does not require proof of an element beyond those required by the greater offense.

Question 4

When can a D be prosecuted for a greater offense when they’ve already been convicted for a lesser offense through a guilty plea?

Answer 4

Therefore, when a conviction of a lesser included offense stems from a guilty plea, the double jeopardy clause bars a subsequent prosecution for the greater offense unless:
-> an event necessary to establish the greater offense occurred after the plea was entered
OR
-> the greater offense was charged before the plea was entered.

Question 5

When does attachment happen?

Answer 5

-> When jury is impaneled or sworn in
OR
-> when first witness is sworn in for bench trial.

Question 6

Has the Double Jeopardy protection attached to D when criminal charges are dismissed against D and before D is put on trial before a trier of fact (judge or jury)?

Answer 6

But if a criminal charge is dismissed before the defendant is put on trial before a trier of fact (judge or jury), then jeopardy does not attach and the defendant can later be prosecuted for the same offense.

Question 7

Can D be charged and convicted in different jurisdictions?

Answer 7

Yes, D can be charged and convicted in both federal and state court for the same crime but under each entities distinct laws.

Also can be charged and convicted by two different states for the same crime.

BUT cannot be charged and convicted by a state and that state’s municipality.

Question 8

Can D be sued in civil court even after being sued in criminal court for the same action?

Answer 8

Yes.

Question 9

Does a guilty plea automatically waive double jeopardy?

Answer 9

No it doesn’t automatically, but there may be a provision that states that charges may be reinstated if D violates guilty plea agreement.

Eg. Person charged with two offenses with one being the lesser, a guilty plea for the lesser doesn’t mean you can’t be charged and convicted for the higher one.

Question 10

How does collateral estoppel apply with the double jeopardy clause?

Answer 10

For collateral estoppel to apply, the earlier decision must have necessarily determined the issue on which collateral estoppel is sought by the defendant.

E.g. Several victims were robbed at the same time. The defendant is initially tried for the crime with respect to only one of the victims. The sole contested issue at the trial is whether the defendant was a perpetrator of the crime. The defendant is acquitted of the crime. The acquittal prevents the defendant’s prosecution for the robbery with respect to any other victim. The fact that the jury determined that the defendant was not a perpetrator of a robbery estops the government from trying the defendant for robbery of any of the other victims.

Question 11

Can a D be prosecuted for felony-murder when the he was already prosecuted and acquitted for the underlying felony of the felony-murder charge?

Answer 11

A felony-murder prosecution predicated upon an underlying felony for which the defendant was acquitted in a previous trial is improper because it would require retrying the underlying felony in violation of the double jeopardy clause.

Question 12

Is the right to appeal guaranteed by the constitution?

Answer 12

No.

Question 13

What is D guaranteed under the first appeal as of right rule?

Answer 13

D is guaranteed equal protection and the right to counsel BUT an attorney may withdraw and there is no right to self-representation.

Question 14

Does indigent D have a right to appointment of counsel in a discretionary appeal?

Answer 14

Indigent D does not have a right to appointment of counsel unless conviction was based on a guilty or solo contendere plea.

Question 15

What must be done with regards to error for them to be considered on appeal?

Answer 15

They must be timely preserved for consideration on appeal.

Question 16

What is a harmless error?

Answer 16

A error that does not affect lsubstnail rights
-> will not serve as grounds for reversal

Question 17

What is a plain error?

Answer 17

D who failed to preserve claim of error is entitled to appellate relief when
-> the district court committed error under the law in effect at the time the appeal is heard
-> the error is obvious under that law
AND
-> the error affected the defendant’s substantial rights

Question 18

How can a D attack a conviction? What’s the standard used?

Answer 18

A D can either appeal the conviction but if that is unsuccessful THEN can appeal under writ of habeas corpus which is a civil action so the standard is preponderance of the evidence.

Question 19

Does usage of a criminal’s prior convictions to enhance a sentencing for a newly convicted crime violate the Double Jeopardy Rule?

Answer 19

The Fifth Amendment double jeopardy clause prohibits multiple punishments for the same offense.

However, in Witte v. United States, the U.S. Supreme Court held that the use of a defendant’s prior convictions to enhance the sentence imposed for a current conviction does not violate the double jeopardy clause.

Question 20

Does the usage of a “three strike” law to render a lengthy and hefty sentence for the third felony, when the sentence for such a crime is alone very low, cruel and unusual punishment (violating the 8th Amendment)?

Answer 20

However, in Ewing v. California, the U.S. Supreme Court held that a lengthy sentence under a three-strikes law does not necessarily violate the Eighth Amendment because the law serves the state’s legitimate goal of deterring and incapacitating repeat offenders. Therefore, the law will not be overturned as a violation of the prohibition against cruel and unusual punishment

Question 21

What two tests will the court apply in a writ of habeas corpus?

Answer 21

The two tests are
-> the unlawful detention had a “substantial and injurious” effect/influence on the verdict
AND
-> court’s decision was contrary to law or based on a unreasonable determination of facts

Question 22

When does the double jeopardy rule not bar a second prosecution of the same offense?

Answer 22

The double jeopardy clause does not bar a second prosecution for the same offense when a mistrial is declared at the defendant’s request, with the defendant’s consent, or due to manifest necessity (e.g., a hung jury).

Question 23

Can an accomplice be sentenced to death for the murder of a person under felony-murder, even though the accomplice didn’t kill the person?

Answer 23

An accomplice to felony murder who did not kill, attempt to kill, or intend to kill cannot be sentenced to the death unless the accomplice (1) significantly participated in the commission of the underlying felony and (2) acted with reckless indifference to human life.