Collateral Attack Upon Conviction / Double Jeopardy

Question 1

Habeas Corpus Proceeding

Answer 1

Focus = Lawfulness of defendant’s detention
* After D has exhausted appeals
* New and separate civil proceeding

Question 2

Death Penalty for Felony Murder (Rights in Relation to Sentencing and Punishment; 8th Amendment)

Answer 2

Death penalty may not be imposed for felony murder, where the defendant as an accomplice did not take or attempt or intend to take life

May be imposed if defendant:
* Participated in major way that resulted in murder; and
* Acted with reckless indifference to the value of human life

Question 3

Double Jeopary (5th Amendment)

Answer 3

Person may not be retried for same offense, once jeopardy has attached

When Jeopardy Attaches:
* Jury Trial = When Jury is Sworn
* Bench Trial = When First Witness is Sworn
* Civil Trial = Jeopardy generally doesn’t attach (Ex: Criminal prosecution for tax fraud and then a subsequent civil proceeding to collect the back taxes)

Question 4

Exceptions to Double Jeopardy (Exceptions Permitting Retrial)

Answer 4

• First trial ends in hung jury
• Manifest necessity to abort first trial (Ex: medical emergency in the middle of trial
• Retrial after successful appeal (defendant may not be tried for a greater offense than that for which they were convicted) (Ex: If a defendant is convicted of manslaughter at the first trial but then successfully appeals to get a new trial, the most serious offense the defendant can now be tried for is manslaughter.)
• D breached plea bargain
• If a defendant could have been tried for multiple charges in a single trial, but the defendant elects to have the offenses tried separately, jeopardy does not attach to the first trial for the other charges.

Question 5

Same Offense (Double Jeopardy)*

Answer 5

Two crimes are not the same offense if each crimes requires proof of additional element that other does not

Question 6

Lesser Included Offenses (Double Jeopardy)

Answer 6

• Attachment of jeopardy for greater offense bars retrial for lesser included offense
• Attchment of jeopardy for lesser included offense bars retrial for greater offense

Ex: Robbery includes the two lesser crimes of larceny and assault. If you are tried for robbery, that means you cannot be retried afterword for the lesser included offense of the larceny.
* Similarly, if you are first put in jeopardy for the lesser included offense, the larceny, then you cannot later be retried for the greater offense of robbery

Question 7

Separate Sovereigns (Double Jeopardy)

Answer 7

State and federal government = Separate Sovereigns
2 States = Separate Sovereigns
State and its municipalities = Same Sovereign

The constitutional prohibition against double jeopardy does not apply to trials by separate sovereigns.
* Thus, a person may be tried for the same conduct by both the state and federal governments or by two states, but not by a state and its municipalities.
* The Double Jeopardy Clause also does not bar a single sovereign from successive prosecutions of distinct offenses arising from the same conduct.
* Thus, a defendant can be prosecuted and convicted of an offense by one federal tribunal, and be prosecuted and convicted months later by another federal tribunal, for a different offense arising from the defendant’s initial act.