Post-Trial Considerations

Question 1

Double Jeopardy

Answer 1

Under the 5th Amendment, there is a right to be free of doupble jeopardyfor the same offense

• Once jeopardy attaches, the D may not be retried for the same offense within the same sovereign

Question 2

What protections does the Souble Jeopardy Clause provide?

Answer 2

Protection against a:

1. 2nd prosecution for the same offense after acquittal
2. 2nd prosecution for the same offense after conviction AND
3. Multiple punishments for the same offense

Question 3

Definition of “Same Offense”

Answer 3

Blockburger Test

• 2 crimes don’t constitute the same offense if each crime requires an element that the other does not
• A crime must have at least 1 dif. element from the other crime to be considered dif. crimes for purp. of double jeopardy

Question 4

“Same Offense” - Lesser Included Offense

Answer 4

Lesser Included Offense - Attachment of Jeopardy for the greater bars retrial for the lesser

Question 5

“Same Offense” - Greater Included Offenses

Answer 5

The attachment of heopardy for a lesser offense bars retrial for greater included offenses

• Exceptions:
  
  • Unable to Try both Simultaneously (e.g. D tried for battery & jeopardy attaches but then vic. dies, D can be retried for murder)
  • New Evidence - Unlawful conduct needed to prove the greater offense:
    
    • Had not occured at the time of proseution of the lesser offense or
    • Had not been discovered despite due diligence

Question 6

When does Jeopardy Attach?

Answer 6

Jury Trial - attaches when jury is empaneled & sworn in

Bench Trial - WHen the first wit. is sworn in

Question 7

Same Sovereign

Answer 7

Right to be free of double jeopardy doesn’t apply to trials that take place in sep. sov. - Acquittal by one sov. doesn’t bar prosecution in another sov.

• Fed. Ct & State Court = Sep. Sov.
• Different State Courts = Sep. Sov.
• St. Ct. & Municipal Ct. w/in Same St. = Same Sov.

Question 8

When does Double Jeopardy attach when Defendant pleads guilty?

Answer 8

When the court unconditionally accepts the D’s guilty plea

Question 9

When does Double Jeopardy attach in a civil trial?

Answer 9

Jeopardy doesn’t attach in civil proceedings

• Even if a D has been found guilty in a criminal action, the state may still bring a civil action against the D that arises out of the same conduct

Question 10

When does Double Jeopardy attach at a Preliminary Hearing ?

Answer 10

Jeopardy doesn’t attach at a preliminary Hearing

• e.g. DJ doesn’t bar a grand jury from returning a indictment when a prior grandjury refused to do so

Question 11

Exceptions to Double Jeopardy that permit a retrial

Answer 11

Certain situations permit a retrial after Jeopardy attached:

1. Trial ends in Hung Jury
2. Original trial aborted for Manifest Necessity
3. D Breached of Plea Bargain
4. Retrial After Successful Appeal
   
   • Exception - ground for reversal was Insufficiency of the ev. to support guilty verdict

Question 12

Double Jeopardy - Collateral Estoppel

Answer 12

If a court has litigated a factual question in the favor of the defendant

• It can’t be re-litigated in the same sovereign to the detriment of the defendant
• Only applies to acquittals, not convictions

Question 13

The right to appeal

Answer 13

Const. doesn’t guarantee an indiv. the right to appeal

• BUT are guaranteed certain rights during the appeal process
  
  • Equal Protection
  • The right to counsel
    
    • If atty believes the appeal is frivolous, she can w/draw so long as appellant’s right to counsel continues to be protected
    • No right of self-representation during appeal

Question 14

Convictions - Writ of Habeas Corpus

Answer 14

D can attack their convictions

• Even if their appeal was unsuccessful or not available
• by challenging the lawfulness of the detention under writ of habeas Corpus
  
  • D doesn’t have to be in Custody, may be out on bail, probation, parole
• Civil Action - So, Petitioner must demonstrate the unlawfulness of the detention by preponderance of the evidence

Question 15

Convictions - Parole & Probation

Answer 15

If a new sentence will be imposed upon the revocation of parole:

• The right to counsel is activated & parolee is entitled to representation to the same extent as a trial

If already imposed sentence is triggered

• Right to counsel is limited - right only applie if it’s nec. for a fair hearing