Criminal Procedure: Double Jeopardy

Question 1

When does jeopardy attach?

Answer 1

1. Jury trial: when jury is sworn
2. Bench trial: when first witness sworn
3. Guilty plea: when court accepts D’s plea unconditionally

Question 2

What is the double jeopardy ‘same offense’ requirement?

Answer 2

Two offenses are NOT same offense for purpose of double jeopardy if each has an element the other does not

Question 3

What is the NY double jeopardy ‘same offense’ requirement?

Answer 3

D must be charged with all offenses arising from any single transaction UNLESS

1. Offenses have substantially different elements
2. Each offense contains element not in other and vindicate different harms
3. One for criminal possession, other for use
4. Each offense involved harm to different victim

Question 4

What is the double jeopardy ‘same sovereign’ requirement?

Answer 4

States and municipalities within them are same sovereigns

Question 5

What are the four exceptions to double jeopardy?

Answer 5

1. Hung jury
2. Mistrial for manifest necessity
3. Retrial after successful appeal
4. Breach of plea bargain by D

Question 6

Who can take the 5th?

Answer 6

Anyone

Question 7

When/where can 5th be taken?

Answer 7

Any proceeding in which individual testifies under oath

NY: cannot be asserted in grand jury proceeding

MUST BE ASSERTED AT FIRST OPPORTUNITY OR FOREVER WAIVED

Question 8

To what does 5th Amend. privilege apply?

Answer 8

Testimonial privilege protecting from compelled testimony only (not state’s use of our bodies)

Question 9

Three ways to eliminate 5th Amend. privilege

Answer 9

1. Prosecutorial grant of “use and derivative use” immunity (NY: “transactional” immunity)
2. D taking the stand waives 5th as to anything properly within scope of cross
3. Unavailable if SOL has run on underlying crime