Double Jeopardy

Question 1

Double jeopardy: No person can twice be subject for the same offense by the same sovereign.

When does “jeopardy” attach?

(Jury trial)

(Bench trial)

(Guilty plea)

Answer 1

Jury trial: When the jury is sworn in

Bench trial: When the first witness is sworn in

Guilty plea: When court accepts the plea unconditionally

Question 2

To which proceedings does double jeopardy NOT apply?

Answer 2

Civil proceedings

(e.g., If SEC civilly prosecutes Axe for insider trading, the US Attorney can still later bring criminal action for securities fraud)

Question 3

When are two offenses separate for double jeopardy?

(i.e., the “same offense” requirement”)

Answer 3

Two offenses are NOT the same when each contains an element the other does not

Question 4

NY QUESTION

What is the NY transaction test for double jeopardy?

Answer 4

In NY, D must be charged with all offenses arising from a single transaction UNLESS:

1. The offenses have substantially different elements;
2. Each offense contains an element not in the other AND prevents different harms;
3. One charge is for criminal possession and the other is for use; OR
4. Each offense involves harm to a different victim.

Question 5

What is the greater and lesser offense rule?

Answer 5

Prosecution for greater offense precludes later prosecution for lesser included offense; AND

Prosecution for the lesser offense precludes later prosecution of the greater.

(e.g., Auto Theft is Joyriding plus the intent to permanently deprive the owner of possession, so Joyriding is “the lesser included offense” in Auto Theft. Thus, state’s action for one precludes action for the other.)

Question 6

When are two sovereigns considered the same for double jeopardy purposes?

Answer 6

States and municipalities within them

(i.e., Different states are different sovs, and Fed and state are different sovs)

Question 7

What are the four exceptions to double jeopardy?

(i.e., Situations that PERMIT retrial)

Answer 7

Retrial okay if first trial had:

1. Hung jury;
2. Mistrial for manifest necessity (e.g. defect found in the indictment during trial that could not be remedied);
3. A successful appeal (UNLESS the reversal on appeal was based on an insufficiency of evidence presented by the prosecution, i.e., the appeal MUST be successful due to a legal matter); OR
4. Breach of the plea agreement by D