Double Jeopardy

Question 1

what are the justifications for DJ

Answer 1

• Finality/efficiency
• Prevents prosecutor from wearing down innocent ∆
  -Limits prosecutorial vindictiveness
  -Increases consistency in treatment of ∆s
  -Forces prosecution to be careful in first attempt
  -Imposes some limits on legislature’s ability to pass duplicative criminal laws
  -Allows repose for ∆
  -Ensures that single fact finder will consider the case

Question 2

what are the four protections of DJ

Answer 2

1. can’t be prosecuted again for same offense after acquittal
2. can’t be prosecuted again for same offense after conviction
3. government can’t punish multiple times for same offense
4. ∆ has right to have case tried by particular fact finder

Question 3

what is the three step test for DJ

Answer 3

1. has jeopardy attached
2. has jeopardy terminated
3. has the government prosecuted defendant again for same offense

Question 4

when does DJ attach

Answer 4

when jury is impaneled and sworn

Question 5

when does DJ terminate

Answer 5

1. judgements reaching merits of a case – even if bad decision
2. post verdict or appellate ruling but only if was based on insufficiency of evidence, not a procedural thing
3. implied acquittals
4. mistrials (if ∆ was goaded into it)
5. convictions

Question 6

when can government appeal

Answer 6

Gov can appeal a judge throwing out a guilty verdict because it’s not a new case – it would just be reinstating the conviction

Question 7

what is issue preclusion

Answer 7

the first jury’s verdict as to a fact necessarily decided something that precludes the second jury from hearing charges on that same point later on

Question 8

what is the effect of severance on issue preclusion

Answer 8

if the ∆ sought the severance, he forfeited his protections from issue preclusion

Question 9

what is charge preclusion

Answer 9

the state can’t bring a successive prosecution if the charges do not EACH have a distinct element from each other

Question 10

what is the effect of the block burger test on predicates

Answer 10

predicates are off limits for felony murder, but conspiracy will also beat Blockburger

Question 11

what is the block burger test

Answer 11

each crime must have an element the other doesn’t

Question 12

how do you show it’s the same offense

Answer 12

1. it’s the same under block burger and
2. must show congress didn’t intend to allow multiple punishments for it

Question 13

what is dual sovereignty doctrine

Answer 13

different sovereigns may prosecute for the same offense. key question is whether their power ultimately derives from separate sources

Question 14

what are different and distinct sovereignties

Answer 14

1. federal/ state
2. state/ state
3. federal/ tribal
4. state/ territories

Question 15

what are the same sovereigns

Answer 15

1. state/ county
2. federal/ territories

Question 16

what is the exception to dual sovereignty

Answer 16

won’t apply under highly unusual circumstances where one sovereign has dominated and manipulated the other so they aren’t really separate

Question 17

what about civil forfeiture

Answer 17

not punitive unless congress wanted it to be, or it’s extremely over the top – so usually doesn’t count for DJ

Question 18

how if criminal forfeiture different from civil

Answer 18

1. it is in the same indictment as the criminal charge
2. it’s in personam- one charge is against the person and other is against the property
3. since these actions happen at once, it’s not DJ

Question 19

can civil in rem forfeiture ever be punitive?

Answer 19

yes if it arises from a criminal prosecution and $ is way above reparation