(10) Double Jeopardy & Collateral Estoppel

What does the Double Jeopardy Clause provide?

No person shall be twice put in jeopardy for the same offense.

Does the Double Jeopardy Clause apply to the states?

Yes, through the Fourteenth Amendment Due Process Clause.

What is the primary purpose of the Double Jeopardy Clause?

To prevent multiple prosecutions or multiple punishments for the same criminal offense.

What two protections does the Double Jeopardy Clause generally provide?

Protection against successive prosecutions and multiple punishments for the same offense.

Does the Double Jeopardy Clause apply to civil proceedings?

Generally no. It applies only to criminal prosecutions.

When are two offenses considered the same offense for Double Jeopardy purposes?

When each offense does not require proof of a fact that the other does not.

What is the Blockburger test?

Two offenses are different only if each requires proof of an element the other does not.

How are lesser-included offenses treated under Double Jeopardy?

They are considered the same offense as the greater offense.

If jeopardy attaches to the greater offense, may the defendant later be prosecuted for a lesser-included offense?

No.

If jeopardy attaches to a lesser-included offense, may the defendant later be prosecuted for the greater offense?

No.

What is the new evidence exception to the lesser-included offense rule?

A later prosecution is permitted when an essential element of the greater offense did not exist during the first prosecution.

Give an example of the new evidence exception.

A defendant prosecuted for battery may later be prosecuted for murder if the victim later dies from the injuries.

May a defendant receive multiple punishments for both a greater offense and its lesser-included offense?

Generally no.

When are cumulative punishments for the same offense permitted?

Only when the legislature clearly authorizes cumulative punishment.

Is conspiracy the same offense as the underlying substantive crime for Double Jeopardy purposes?

No.

Does the Double Jeopardy Clause generally bar remedial civil actions arising from the same conduct?

No.

May the government bring a criminal prosecution after a related civil proceeding?

Yes.

May the government civilly commit a dangerous offender after completion of a criminal sentence?

Yes, if the commitment is civil rather than punitive.

When may a civil sanction violate Double Jeopardy?

When the sanction is so punitive that it is effectively criminal punishment.

Are most governmental monetary penalties considered civil rather than criminal?

Yes.

Once a statute is determined to be civil, may a defendant argue it is criminal only as applied to him?

Generally no.

When does jeopardy attach in a jury trial?

When the jury is impaneled and sworn.

When does jeopardy attach in a bench trial?

When the first witness is sworn.

May jeopardy attach before a verdict is reached?

Yes.

Does jeopardy attach when juvenile proceedings commence?

Yes.

When does Double Jeopardy generally not bar retrial following a mistrial?

When the defendant requested or consented to the mistrial.

When is retrial barred after a mistrial requested by the defendant?

When the mistrial resulted from prosecutorial or judicial bad faith.

When may a defendant be retried after objecting to a mistrial?

Only if there was manifest necessity for the mistrial.

What are examples of manifest necessity?

A hung jury, death or illness of the judge, a juror, or the defendant.

Does a hung jury bar retrial?

No.

What is the dual sovereignty doctrine?

Different sovereigns may each prosecute the same conduct without violating Double Jeopardy.

May both a state and the federal government prosecute the same conduct?

Yes.

May two different states prosecute the same conduct?

Yes.

Does Double Jeopardy bar a second prosecution by a separate sovereign?

No.

Does dismissal before trial bar later prosecution?

No.

When is retrial generally permitted after dismissal following attachment of jeopardy?

When the dismissal was requested by the defendant for reasons unrelated to guilt or innocence.

Does an acquittal bar retrial even if the acquittal was legally erroneous?

Yes.

If a conviction is overturned after trial, may the prosecution appeal or seek reinstatement?

Yes, if no additional fact-finding or retrial is required.

When may a defendant be retried after a conviction is reversed?

When the reversal was unrelated to guilt or innocence.

May a defendant appeal a conviction and still be retried?

Yes.

Why is retrial generally allowed after a successful appeal by the defendant?

Because the original trial and appeal are treated as one continuing jeopardy.

After a successful appeal, may the defendant be retried for a greater offense than the original conviction?

No.

When is retrial prohibited following reversal of a conviction?

When the conviction was reversed because the evidence was legally insufficient.

May retrial occur when the conviction is reversed because the verdict was against the weight of the evidence?

Yes.

May retrial occur after reversal of a sentence enhancement based on trial error?

Yes.

May the prosecution appeal before conviction?

Yes, if the proceeding was not terminated on the basis of innocence.

Does Double Jeopardy prevent the prosecution from seeking a harsher lawful sentence on appeal?

No.

What is collateral estoppel in criminal law?

The prosecution may not relitigate an ultimate issue of fact already necessarily decided in the defendant's favor.

When does collateral estoppel apply?

When an identical ultimate issue of fact was necessarily determined in the defendant's favor by a valid final judgment.

What is the rationale for collateral estoppel?

The government should not repeatedly litigate the same factual issue after it has already lost.

Does collateral estoppel apply simply because similar evidence is introduced in a later trial?

No.

What type of fact must have been previously decided for collateral estoppel to apply?

An ultimate fact necessary to the later prosecution.

Do merely evidentiary facts trigger collateral estoppel?

No.

Does collateral estoppel apply between different sovereigns?

No.

Testable Issue:When are two crimes considered the same offense for Double Jeopardy purposes?

When each offense does not require proof of a different element or one offense is a lesser-included offense of the other.

Testable Issue:When does jeopardy attach?

In a jury trial when the jury is sworn, in a bench trial when the first witness is sworn, upon commencement of juvenile proceedings, and when the judge terminates the trial after attachment.

Testable Issue:When may retrial occur after a mistrial?

When the defendant requested or consented to the mistrial, or when manifest necessity justified the mistrial despite the defendant's objection.

Testable Issue:What is the dual sovereignty doctrine?

Different sovereigns may separately prosecute the same conduct without violating Double Jeopardy.

Testable Issue:When is retrial barred after a successful appeal?

When the conviction was reversed because the evidence was legally insufficient.

Testable Issue:When does collateral estoppel prevent a second prosecution?

When an ultimate issue of fact was necessarily decided in the defendant's favor during the first prosecution by the same sovereign.

Essay Rule:How do you analyze a Double Jeopardy issue?

Determine whether jeopardy attached, whether the later prosecution or punishment involves the same offense, identify any applicable exception such as manifest necessity, dual sovereignty, new evidence, or continuing jeopardy, and then determine whether collateral estoppel independently bars relitigation of an ultimate fact.

Master Synthesis:What is the framework for analyzing Double Jeopardy and collateral estoppel issues?

Determine whether jeopardy attached, identify whether the second proceeding involves the same offense or merely the same conduct, analyze whether any recognized exception permits retrial or additional punishment, and finally determine whether collateral estoppel bars relitigation of an ultimate fact previously resolved in the defendant's favor.