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Flashcards in Double Jeopardy Deck (13)
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1

Double Jeopardy General Rule

  1. once D is placed in jeopardy for an offense, he can never again be tried for that same offense
  2. Second prosecution not barred if it ends before jeopardy attaches

2

Double Jeopardy and Acquittals

  1. Acquittals are always final- no second trial permitted.
  2. Any finding that evidence is insufficient made by trial or appellate court is an acquittal

3

Jeopardy and Lesser Included Offenses

  • conviction of a lesser included offense is an implied acquittal of charged crime.

4

When Jeopardy Attaches

  1. jury trial: when jury is sworn
  2. bench trial: when first witness is sworn.

5

List of Jeopardy Exceptions

  1. the first proceeding ended in a mistrial declared for “manifest necessity” (i.e. really good reasons) e.g. hung jury
  2. The first proceeding ended in mistrial declared on motion of defendant
  3. First trial ended in conviction reversed on appeal because of procedural error; or
  4. Second prosecution is by a different sovereign jurisdiction.

6

Double Jeopardy and Conviction Reversal Examples

  1. Retrial possible when:
    1. conviction reversed due to in error in jury instructions
  2. Retrial not possible when:
    1. conviction reversed due to insufficient evidence

7

Double Jeopardy and Lesser Included Offenses

  1. successive prosecutions for different offenses are barred only if one offense is a lesser included offense of the other.

8

Blockburger Test for Determining Lesser Included Offenses

  1. Compare elements of the two crimes
  2. If each offense contains at least one element not contained in the other, then neither is a lesser included offense of the other and successive prosecutions are permitted.
  3. Otherwise, one is a lesser included offense of the other and successive prosecutions are barred.

9

Collateral Estoppel Rule for Determining Lesser Included Offenses

  1. acquittal of one offense bars second prosecution for different but related offense if D shows both:
    1. the precise factual basis for acquittal in first proceeding, and
    2. that fact also controls in second prosecution.

10

Convictions for Several Offenses

  1. convictions for several related offenses in one proceeding are barred only if the legislature did not intent to authorize convictions for all.
  2. If one offense is a lesser included offense of another, it is presumed (rebuttably) that the legislature did not intend conviction for both.

11

Double Jeopardy and Separate Sovereignties

  1. multiple prosecutions and/or conviction permitted if done by separate sovereign governments

12

What Constitutes Separate Sovereign Governments for the Purposes of Double Jeopardy

  1. State and federal govts
  2. Different states
  3. NOT cities within a state

13

VA Double Jeopardy Rules

  1. If the Defendant's action violates one or more statute, conviction under one statute bars prosecution under the others.
  2. If the defendant's act violates of both a state and a federal statute, a prosecution under the federal statute bars prosecution under the state statute.