double jeopardy protects from
multiple prosecutions and punishments
limitations of double jeopardy
separate sovereignty
blockburger test
If each offense contains an element not contained in the other then there is no double jeopardy problem
- if not, they are the same under 5A
for Blockburger test, lesser included are considered
the same offense
Blockburger applies to
successive prosecutions, not co-prosecutions
Brown Diaz Exception
Applies when the facts underlying the subsequent charge that would have been the same offense, but those facts could not have been known at the time of the initial prosecution
Separate Sovereignty look at
where does the ultimate source of power for the sovereign stem from
- same place = same sovereign
if they are separate sovereigns the offense
is never the same offense
Collateral estoppel
same issue and both parties had the opportunity to fairly litigate
- can be used for individual elements and whole charges
civil v. criminal penalty
whether the legislature in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other
when it is a civil penalty look at
- sanction involves affirmative disability or restraint
- historically been regarded as a punishment
- comes into play only on a finding of scienter
- the operation will promote the traditional aims of punishment
- the behavior to which it applies is already a crime
jeopardy is triggered when
- when guilty plea is accepted
- jury trial is empaneled and sworn
- when first witness is sworn if bench trial
if a charge is dismissed but the dismissal is then reversed double jeopardy
does not bar because it was not determined on the sufficiency of the evidence
If D is convicted and wins on appeal, P can retry unless
reversal is based on a insufficiency of the evidence
when P requests a mistrial over D objection
Manifest necessity rule
Manifest necessity rule
whether there is a manifest necessity for the mistrial
- if yes, no bar to re-prosecution
- asks if there is a high degree of necessity to correct some error
When D requests a mistrial
double jeopardy is not applicable
- unless the prosecution’s actions giving rise to the motion for mistrial were done intending to goad the defense into requesting a mistrial
Acquittal is
final
- judge during bench trial
- jury during jury trial
- implied acquittals
- termination in D’s favor on grounds that the evidence is not sufficient to support a conviction
