As a start, double jeopardy, as it's stated in the Fifth Amendment of the Constitution, simply prevents a person from being retried for the same offense once jeopardy has attached. In determining whether double jeopardy is an issue, therefore, an initial consideration is whether jeopardy has attached. Jeopardy attaches in a bench trial when the first witness is sworn. In a jury trial, jeopardy attaches at the empaneling and swearing of the jury.
Even if jeopardy has attached, however, there are exceptions as to when double jeopardy will not bar re-trial, and those exceptions are often tested on the MBE. First, a state can re-try a defendant whose first trial ends in a hung jury. In addition, if the first trial ends due to manifest necessity, and termination of that trial occurred on any ground not constituting acquittal on the merits, the defendant can be re-tried without double jeopardy precluding that opportunity.
Further, if defendant is found guilty at trial, appeals the conviction, and wins the appeal, the state can retry the defendant (unless the ground for reversal on appeal was insufficient evidence to support the original guilty verdict).
If you've determined that jeopardy has attached, and that none of the above exceptions apply, another consideration is whether the state is attempting to re-try the defendant on the same offense as defendant had previously been tried. Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require. Stated differently, if each crime requires proof of an additional element that the other does not require, then those crimes do not constitute the same offense for the purposes of excluding re-trial based on double jeopardy.
A few final points: Double Jeopardy prohibits repetitive criminal trials. It does not prevent the state from bringing a civil action against a defendant even if the defendant has already been tried, and acquitted, in a criminal trial, for the conduct out of which the civil action arises. The same would hold true if the civil trial were first. Finally, note that separate sovereigns can try a defendant for the same offense. Accordingly, a person may be tried for the same conduct by both the state and federal government, or by two separate states.
Bar Exam (July 2024) & LSAT Tutoring! MBE tutoring is available for students in all states. Bar exam essay tutoring is available for students taking the UBE and the Florida Bar Exam. LSAT tutoring is available for all students. Tutoring is via video (Skype, Zoom, etc.) for students in all states. To learn more about available tutoring options, you can reach out to me directly @ silvermanbarprep@gmail.com for bar exam tutoring and @ silvermanlsat@gmail.com for LSAT tutoring.
RESOURCES AVAILABLE FOR PURCHASE
Thursday, December 29, 2011
Subscribe to:
Post Comments (Atom)
"Finally, note that separate sovereigns can try a defendant for the same offense. Accordingly, a person may be tried for the same conduct by both the state and federal government, or by two separate states."
ReplyDeleteCan you provide examples of these?
This means that a state (for example, Alabama) would not be prevented based on Double Jeopardy from convicting a defendant for murder simply because he had already been tried and convicted of that same murder in another state (for example, Georgia).
ReplyDeleteIn addition, double jeopardy will not prevent the federal government from hearing a case, simply because the case has been decided on its merits in state court.
Can you give a scenario where a defendant would be subjected to a murder conviction in more than 1 state?
ReplyDeleteIt's probably quite uncommon, but situation can arise where a defendant is convicted of murder in one state and sentenced to life imprisonment, and then convicted in another state with stricter penalties, and sentenced to death. This is not disallowed by the Double Jeopardy Clause.
ReplyDeleteSee http://en.wikipedia.org/wiki/Heath_v._Alabama
Still a bit confused. If it's one murder, under what circumstances would the person be tried in 2 different states for it?
ReplyDeleteCheck the link. :)
ReplyDeleteWow. This is crazay! So he lives in Bama, drives to GA to get the hitmen, they all go back to Bama, he leaves, and then the hitmen go back to GA with her, and kill her. Then he gets plugged for the murder in GA, and felony murder in AL due to the kidnapping. Nice.
ReplyDelete