Double Jeopardy

Question 1

When does it attach?

Answer 1

• Jury trial: when the jury is sworn
• Bench trial: when the first witness is sworn
• Guilty plea: when the court accepts the defendant’s plea unconditionally
• Does not apply for civil proceedings

Question 2

Same offense requirement: General Rule

Answer 2

Two offenses are not the “same offense” for purposes of the double jeopardy clause if each contains an element the other does not.

E.g. vhiciular manslaugher and hit and run

Question 3

Same offense requirement: greater and lesser included offenses

Answer 3

Prosecution for the greater offense prcludes later prosecution for the lesser included offense and vice versa

Question 4

Same sovereign Requiement

Answer 4

• Double Jeopardy bars retrial for the same offense by the same sovereign ONLY.
• Who are the same sovereigns for double jeopardy purposes?
  
  • (1) State and federal government? No
  • (2) Different states? No
  • (3) States and municipalities within them? Yes

Question 5

Four Exceptions to Double Jeopardy that Permit Retrial

Answer 5

1) Hung jury
2) Manifest Necessity (mistrial)
3) Successful Appeal (unless besd on insufficiency of evidence)
4) Breach of the plea