Double Jeopardy Flashcards
(20 cards)
Which amendment does the concept of jeopardy stem from?
5th Amendment
What is rule regarding jeopardy?
A person may not be retried for the same offense once jeopardy has attached (i.e., “double jeopardy”)
When does jeopardy attach in a jury trial?
In a jury trial, at the empaneling and swearing of the jury
When does jeopardy attach in a bench trial?
In bench trial, when first witness is sworn
T or F: Commencement of a juvenile proceeding bars a subsequent criminal trial for the same offense
True
Under what circumstances may multiple punishments for same offense be permissible?
Where legislative intent (i.e., statute) allowing cumulative punishments
Does jeopardy attach in civil proceedings?
Generally no (except for juvenile proceedings)
What exceptions permit retrial?
1) hung jury
2) manifest necessity (emergency)
3) D’s successful appeal*
4) D breaches plea bargain
5) D elects to have offenses tried separately
Can the state retry a D following D’s successful appeal on any grounds?
No; if grounds for reversal insufficient evidence, can’t retry; however, if based on weight of evidence, can retry, but not for greater offense
What constitutes “same offenses?”
Two crimes are the same offense unless each crime requires proof of an additional element that the other doesn’t
What effect does the attachment of jeopardy have on lesser included offenses?
Bars retrial for lesser included offenses (AND greater offenses)
How can new evidence provide an exception to double jeopardy?
Provides exception if unlawful conduct that’s subsequently used to prove greater offense 1) hasn’t occurred at time of prosecution for lesser offense, OR 2) has not been discovered despite due diligence
What happens if D is tried for battery and victim dies following attachment of jeopardy?
D can be tried for murder
How does a plea deal impact prosecution where multiple offenses involved?
State may continue to prosecute offense EVEN IF D has guilty plea to lesser offense from same incident
T or F: Double jeopardy violation occurs if person indicted for crime the conduct of which was previously used to enhance D’s sentence for another crime
False
Does double jeopardy apply to separate sovereigns?
No
Are states and municipalities considered the same sovereign?
Yes
Per collateral estoppel, what happens to D if a prior prosecution by a given sovereign resulted in a factual determination inconsistent with one required for conviction?
D cannot be tried or convicted for new crime
Under what circumstances may the prosecution appeal?
1) any dismissal on D’s motion that isn’t an acquittal on the merits (even after jeopardy has attached)
2) where successful appeal wouldn’t require retrial
3) where appeal of sentence pursuant to statute permitting such review
T or F: If just fails to impose death penalty, prosecution may not seek death penalty on retrial after successful appeal
True
