Kaplan Pgs 415-419 Double Jeopardy

Question 1

What is the purpose of the double jeopardy clause?

Answer 1

To prevent undue harassment and expense

Question 2

Where does the Double Jeopardy clause come from?

Answer 2

The fifth amendment and it applies to the States through the due process clause of the 14th amendment

Question 3

What is the wording of the double jeopardy clause?

Answer 3

No person shall be subject to the same offence to be put in jeopardy of life or limb

Question 4

What kinds of crimes does double jeopardy apply to?

Answer 4

All crimes, even if they are only punishable by a fine

Question 5

When does double Jeopardy attach in a non-jury trial and in a jury trial?

Answer 5

• nonjury: when the first witness is sworn and the court begins to hear evidence
  – jury trial: when the jury is empaneled and sworn

Question 6

How do you determine if crimes involve the same offence under double Jeopardy?

Answer 6

Crimes constitute the same offence if one set of facts proves both of them. So lesser included offences are considered to be the same offense. I.e.: robbery has the same elements as larceny, so larceny is considered to be a lesser included offence of robbery.

Question 7

The separate sovereignty is doctrine for double Jeopardy does not prevent dual prosecution by separate sovereigns, so a defendant can be prosecuted for the same criminal conduct by:

Answer 7

– a federal court and then a state court or vice versa

– state courts in two separate states

Question 8

If a defendant successfully appealed his conviction because of an error made at trial, what happens with regard to double Jeopardy?

Answer 8

The appeal is considered to be a waiver of a double deputy claim

Question 9

When does a retrial after a mistrial constitute double Jeopardy and when doesn’t it?

Answer 9

• if the mistrial was granted on the defendant’s motion, then double Jeopardy does not apply
  – if the retrial was objected to by the defendant, then double Jeopardy does apply unless the court decides that manifest necessity exists so that justice can only be served by declaring a mistrial

Question 10

If a judge grants an acquittal after a hung jury, does double Jeopardy prevent a retrial?

Answer 10

Yes

Question 11

What are two situations when the prosecution can appeal an adverse ruling without double Jeopardy barring a second suit?

Answer 11

• if the judge granted an acquittal on an issue that was not related to the guilt or innocence of the defendant
  – if an appeal can be decided without subjecting the defendant to a second trial

Question 12

If a defendant appeals his own conviction and gets a new trial and then is reconvicted for the same offense, does double jeopardy bar a harsher sentence the second time?

Answer 12

No as long as new information is on the record