Double Jeopardy

Question 1

Double Jeopardy General Rule

Answer 1

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

Question 2

Double Jeopardy and Acquittals

Answer 2

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

Question 3

Jeopardy and Lesser Included Offenses

Answer 3

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

Question 4

When Jeopardy Attaches

Answer 4

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

Question 5

List of Jeopardy Exceptions

Answer 5

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.

Question 6

Double Jeopardy and Conviction Reversal Examples

Answer 6

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

Question 7

Double Jeopardy and Lesser Included Offenses

Answer 7

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

Question 8

Blockburger Test for Determining Lesser Included Offenses

Answer 8

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.

Question 9

Collateral Estoppel Rule for Determining Lesser Included Offenses

Answer 9

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.

Question 10

Convictions for Several Offenses

Answer 10

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.

Question 11

Double Jeopardy and Separate Sovereignties

Answer 11

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

Question 12

What Constitutes Separate Sovereign Governments for the Purposes of Double Jeopardy

Answer 12

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

Question 13

VA Double Jeopardy Rules

Answer 13

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.