Crim Pro Foundations 9 - Self Incrimination and Double Jeopardy

Fifth Amendment Privilege Against Self-Incrimination

• Applies during trial.
• Guarantees the right not to be a witness against oneself.
• Extends to any proceeding where testimony might be incriminating (except for business entities, only humans possess this right).
  • E.g., a defendant in a civil trial for tax evasion can invoke the Fifth Amendment if asked about potentially fraudulent tax practices, as the testimony could be used against them in a criminal trial.
  • Testifying before congress if what you say might be the basis for a criminal charge, you can take the fifth.
• How to Invoke the Fifth:
  • In any situation except criminal trial, a person must listen to the question and verbally invoke the right (e.g., "I take the fifth," or "I invoke my Fifth Amendment privilege not to speak.").
  • At a criminal trial, the defendant can refuse to take the stand altogether and the prosecutor cannot comment on that decision.
• Scope of the Privilege:
  • Applies only to testimony.
  • Does not protect against providing handwriting samples or turning over records held by a third party (e.g., banks).
  • Generally does not apply to the production of pre-existing documents, as the act of production is not testimonial and the government did not compel the creation of the documents.

Double Jeopardy

• Prohibits putting a person in jeopardy of life and limb (trial and punishment) more than once for the same offense.

• Key Points:

  • Applies only to criminal prosecutions; does not apply to civil proceedings.
    • A defendant can be criminally prosecuted and subsequently sued in a civil proceeding for the same conduct.
  • Applies only to criminal trials by the same sovereign.
    • Sovereigns: State governments and the federal government are separate sovereigns.
      • Each state is a separate sovereignty under federalism, and the federal government is a sovereign distinct from the states.
      • Example: If Dom steals bonds in Omaha, Nebraska, and cashes them in Council Bluffs, Iowa, both Nebraska and Iowa can bring criminal charges and so can the feds if banking stuff are involved because federal criminal laws also apply.
      • Cities and similar entities are not separate sovereigns from their state.

• Two Circumstances for Double Jeopardy Protection:

  • When a state or the federal government seeks to retry a defendant for the same crime after a not guilty verdict.
  • When a state or federal government seeks a second trial for violating a different law, but the second trial is based on the same conduct as the first, and the crimes are closely related.
    • SCOTUS provides a test that defines when two crimes are not the same.

• Blockburger Test:

  • Two crimes are not the same offense if each crime requires proof of an additional element that the other does not.
  • Each crime must have a distinct element.
  • Analogy: Blockbuster (movies) and Burger King (hamburgers) - each has something the other doesn't.
  • Example: Bonnie and Clyde rob a bank and kidnap the bank manager.
    • Robbery requires taking personal property of another, person or presence, force or intimidation, intent to permanently deprive.
    • Kidnapping requires confining a person with movement or concealment.
    • These are separate offenses, as none of the elements overlap.
  • Robbery versus Larceny
    • Robbery requires force or intimidation, which larceny doesn't.
    • Larceny's elements are all elements of robbery, so they are not separate offenses. Larceny is a lesser included offense.
      • If jeopardy attaches for the greater offense (robbery), double jeopardy bars retrial for the lesser included offense (larceny).
      • If jeopardy attaches for the lesser included offense, double jeopardy bars retrial for the greater offense.

• When Jeopardy Attaches:

  • Jury Trial: At the impaneling and swearing of the jury.
  • Bench Trial: When the first witness is sworn in.
  • Juvenile Proceedings: At the commencement of proceedings when the court starts hearing evidence.

• Exceptions to Double Jeopardy:

  • Hung Jury: Retrial is allowed if the jury cannot reach a verdict.
  • Manifest Necessity: Retrial is allowed if the trial is discontinued due to manifest necessity (e.g., death of a juror without an alternate) or if the defendant requests a retrial.
  • Plea Bargain: If a defendant reaches a plea bargain after jeopardy attaches and then violates the deal, retrial is allowed.
  • Successful Appeal:
    • If the appeals court finds insufficient evidence to convict, the state cannot retry the defendant.
    • If the defendant was found guilty of a lesser included charge, they cannot be charged with a more serious crime after a successful appeal.
      • Example: Bonnie and Clyde are tried for aggravated armed robbery (requires proof that a weapon was used) but are convicted of only simple robbery because the jury finds insufficient evidence of a weapon. The state cannot retry them for aggravated armed robbery, as they were essentially found not guilty of using a weapon.