DOUBLE JEOPARDY

Double Jeopardy – General Rule

Under the 5th Amendment, a person may not be retried for the same offense once jeopardy has attached

When does jeopardy attach in a jury trial?

At the empaneling and swearing in of the jury

When does jeopardy attach in a bench trial?

When the first witness is sworn

Does jeopardy attach in civil juvenile proceedings?

YES

Exceptions to Double Jeopardy

(1) A state may retry a defendant whose first trial ends in a hung jury, (2) When there is a manifest necessity to abort the original trial or when termination occurs at the behest of the defendant on any ground not constituting acquittal on the merits, (3) The defendant successfully appealed a conviction, unless the ground for reversal was insufficient evidence to support a guilty verdict, (4) Retrial is based on the weight of the evidence and the defendant is NOT tried for a greater offense, (5) The defendant breaches their plea bargain agreement, and the plea and sentence is withdrawn with original charges reinstates, and (6) If a defendant could have been tried for multiple charges in a single trial, but elects to have the offenses tried separately

Once a defendant agrees to testify against a co-defendant, does that agreement attach to every subsequent trial?

YES

When are two crimes NOT the same offense?

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

Cumulative Punishments for Offenses Constituting the Same Crime

Even if two crimes constitute the same offense, multiple punishments are permissible if there was a legislative intent to have cumulative punishments

Lesser Included Offenses

Attachment of jeopardy for a greater offense bars retrial for lesser included offenses, and attachment of jeopardy for a lesser included offense bars retrial for a greater offense

Lesser Included Offenses – Exception for New Evidence

Double jeopardy does not apply if unlawful conduct that is subsequently used to prove the greater offense (1) has not occurred at the time of prosecution for the lesser offense, OR (2) has not been discovered despite due diligence

Is a retrial for murder permitted if the victim dies after attachment of jeopardy for battery?

YES

Does double jeopardy apply to trials by separate sovereigns?

NO

Collateral Estoppel

A defendant may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction

Does double jeopardy bar appeals by the prosecution if a successful appeal would not require a retrial?

NO

Does double jeopardy bar the government from appealing a sentence?

NO