MBE Trap: Double Jeopardy

The trap in this area doesn't so much deal with the elements of double jeopardy (jeopardy attaching, decision on the merits, etc.).

Rather, it goes to something more fundamental: the requirement that the defendant be tried for the same offense twice before double jeopardy is even a consideration. The trap deals with the "same offense" terminology. Imagine the following: Offense 1 contains the elements A, B, C, D Offense 2 contains the elements A, B, C, D, E It might be tempting to think of these as two separate offenses. There's an element (element E) in offense 2 that's not in offense 1. You'll notice, though, that there is no element in offense 1 that is not in offense 2. For example, if you were to circle the element in each offense that was not in the other offense, you'd be able to circle element E in offense 2, but there would be nothing to circle in offense 1. These are considered "the same offense" for this purpose, and double jeopardy should be considered. In contrast, Offense 1: A, B, C, D Offense 2: B, C, D, E Here, if you were to circle the element in each offense that was not in the other offense, you'd be able to circle element A in offense 1 and element E in offense 2. Since you'd be able to circle an element in each offense, these are considered as separate offenses, and you should not even consider double jeopardy as a possibility.