Double Jeopardy

Question 1

What is Double Jeopardy?

Answer 1

The doctrine that prohibits the government from trying a person more than once for the same offense

Question 2

What amendment governs Double Jeopardy?

Answer 2

5th and 14th Amendment

Question 3

When does Jeopardy Attach for Jury Trials?

Answer 3

When the jury is empaneled and sworn

Question 4

When does double Jeopardy attach for a bench trial?

Answer 4

When the first witness is sworn in

Question 5

When does double jeopardy attach on a guilty plea?

Answer 5

When the court accepts the plea

Question 6

What are the methods for double jeopardy analysis?

Answer 6

1. Collateral Estoppel
2. Same Offense Test

Question 7

What are the elements of a Collateral Estoppel claim of Double Jeopardy

Answer 7

1. Issue of Ultimate Fact
2. Determined by a final judgement
3. Relititgated by the same parties

AND Test

Ashe v Swenson (1970)

Question 8

When is something considered to be an issue of ultimate fact?

Answer 8

You have met the issue of ultimate fact prong when the jury could not have grounded it’s verdict on any issue other than that which the defendant seeks to foreclose from consideration

Ashe v Swenson (1970)

Question 9

When do you have a final judgement?

Answer 9

On acquittal or exhausted appeals

Question 10

Can the government appeal an acquittal?

Answer 10

No

Question 11

What is Dual Soverengity?

Answer 11

The idea that a person can be a sovereign of multiple jurisidictions that may prosecute them for the same crime

Question 12

What is the rationale for the Dual Sovereignty Doctrine?

Answer 12

Different jurisdictions have independent reasons for their prosecutions and advance different interests. They should be allowed to do so

Question 13

When are two jurisdictions considered to be the same sovereign?

Answer 13

When they draw their power to punish from the same source

Question 14

Can you be prosecuted for the same offense in two states?

Answer 14

Yes

Heath v Alabama

Question 15

Can you be prosecuted for the same conduct by the Federal Government and a State?

Answer 15

Yes

Question 16

Is Puerto Rico a different Sovereign from the Federal Government?

Answer 16

No

Puerto Rico is a territory that draws its power from the constitution

Puerto Rico v Sanchez-Valle

Question 17

Is there Double Jeopardy when prosecuted civilly and criminally for the same conduct?

Answer 17

It depends. The Double Jeopardy Clause only prohibits this when there is a showing that the penalty under the statute was criminal punishment

Hudson v U.S (1997)

Question 18

What are the factors to consider to know if a statutory penalty is considered criminal punishment?

Answer 18

1. Does the sanction involve an affirmative disability or restraint
2. Has this sanction historically been regarded as punishment
3. Is it only triggered by a finding of scienter (intent)
4. Does it promote the traditional aims of punishment? - Retribution or Deterrence
5. Is the behaviour to which it applies already a crime
6. Does it advance a non-punishment purpose; if so
7. Does it appear excessive in relation to that other purpose

Non Exhaustive

Kennedy v Mendoza identified in Hudson v US

Question 19

When does Double Jeopardy Apply to Mistrials?

Answer 19

Double Jeopardy bars a subsequent prosecution when a mistrial is declared over the defendants objection, unless there’s a manifest necessity for the mistrial

Question 20

Examples of Manifest Necessity

Answer 20

Hung Jury

Arizona v Washington (1976)

Question 21

Examples of Mistrials that do not meet Manifest Necessity?

Answer 21

Prosecutor asks for a mistrial to fix the case

Arizona v Washington (1976)

Question 22

How the Supreme Court say the manifest necessity standard should be interepreted?

Answer 22

To mean “a high degree of necessity”

Arizona v Washington (1976)

Question 23

When does Double Jeopardy bar subsequent prosecution after the defendant requests a mistrial?

Answer 23

If the prosecutor engaged in misconduct to induce the defendant into seeking the mistrial

Oregon v Kennedy (1982)

Question 24

When Does Double Jeopardy bar re-prosecution after a dismissal before the end of trial?

Answer 24

If it was dismissed because the evidence was legally insufficient to establish an element offense

Otherwise no double jeopardy

US v Scott (1978)

Question 25

When does Double Jeopardy Bar reprosecution after a successful appeal?

Answer 25

Re-prosecution barred when appeal reverses based on lack of sufficient evidence

Burks v US (1978)