Collateral Attack Upon Conviction / Double Jeopardy

Question 1

habeas corpus proceeding -

Answer 1

After D has exhausted appeals, may begin a new and separate civil proceeding to attack the lawfulness of their detention

Question 2

death penalty may NOT be imposed for felony murder when

Answer 2

D as an accomplice did not take/attempt/intend to take life

Question 3

death penalty MAY be imposed for felony murder when

Answer 3

participated in a major way that resulted in murder AND

acted w/ reckless indifference to the value of human life

Question 4

when double jeopardy attaches

Answer 4

If jury trial - when jury is sworn

If bench trial - when first witness is worn

Question 5

exceptions to double jeopardy rule

Answer 5

1) first trial ends in hung jury

2) manifest necessity to abort first trial (ex. medical emergency in middle of trial)

3) retrial after successful appeal (but can not be retried for a more serious offense that D was tried the first time)

4) D breached plea bargain

Question 6

can D be prosecuted in a criminal proceeding and civil?

Answer 6

Yes. Generally double jeopardy does not attach when the proceedings are civil.

Ex. criminal prosecution for tax fraud and subsequent civil proceeding to collect back taxes

Question 7

two crimes are NOT the same offense if:

Answer 7

each crime requires proof of an additional element that the other does not

Question 8

if you are tried for a greater offense - can you be retried for lesser offense later? ex. robbery then tried for assault and larceny

Answer 8

No

Question 9

if you are tried for a lesser offense - can you be retried for greater offense later? ex. tried for assault and larceny and then later tried for robbery?

Answer 9

No

Question 10

does prohibition against double jeopardy apply to trials by separate sovereigns? (ex. state and federal?)

Answer 10

No. Does not apply to trials by separate sovereigns.

State and federal = separate

2 states = separate

BUT state and its municipalities = same