VI.(D) 5th Amendment - Double Jeopardy

Question 1

What is the rule for double jeopardy

Answer 1

The fifth amendment protects against double jeopardy - that is being retried for the same offense in the same sovereign.

Note that state and municipal court in the same state would be the same sovereign. Whereas, a state court is a different sovereign from another state court or federal court.

Question 2

When will the right against double jeopardy apply?

Answer 2

It won’t attach for preliminary hearings or civil trials, but it will for:

(1) a bench trial when the 1st witness is sworn in,
(2) a jury trial when the jury is empaneled and sworn in and
(3) when the court accepts a defendant’s guilty plea.

Question 3

What are the exceptions to double jeapordy, even if it had previously attached?

Answer 3

(1) Hung jury
(2) Mistrial for manifest necessity (e.g., jury misconduct)
(3) Breach of plea bargain
(4) Successful appeal of conviction, unless appeal was won because of insufficiency of evidence

Question 4

How do you approach double jeopardy for offenses with the same elements>

Answer 4

When double jeopardy attaches to a greater offense then the lesser offense (all the elements of which are included in the greater offense) is barred.

Generally, the same applies if double jeopardy attached for the lesser offense, unless the greater offense is being tried because:
(1) the victim died, surfacing the greater offense, or
(2) new evidence arose, surfacing the greater offense.

Question 5

What can you do if double jeopardy is denied?

Answer 5

As an exception to the final judgment rule, denial of a dismissal based on double jeopardy is immediately appealable.

Question 6

Can particular factual questions be relitigated?

Answer 6

The doctrines of collateral estoppel and res judicata - which prevent factual questions decided in the defendant’s favor being relitigated in their detriment - apply to acquittals but not convictions.