Criminal Procedure Spring 2009 Courtney Gahm I. Table : Checklist – Analyzing Double Jeopardy Questions Ask the following questions, in order for fact patterns raising DJ issues (doesn’t cover every nuance of DJ). 1. Did Jeopardy exist in the first prosecution? If yes, go to #2. If no, a new prosecution is permissible (without a first jeopardy there can’t be double jeopardy). Examples: Case is dismissed before jury is empanelled, etc.) 2. Is the second trial by the same sovereign (e.g. same state, including municipalities? If yes, go to #3. If no, a new prosecution is possible; double jeopardy applies only to new prosecutions by the same sovereign. 3. Is the second prosecution for the same offense as the first (i.e., to convict in the second prosecution, must the government prove conduct that constitutes an offense for which the Δ has already been prosecuted? If yes, go to #4. If no, a new prosecution is possible. 4. Did the facts or circumstances make it impossible to try the Δ on the new charges at the first trial (e.g., victim died after first trial on robbery and second charge is murder, or Δ demanded severance of charges)? If yes, the second prosecution isn’t barred. If no, go to #5. 5. Did the first prosecution end in acquittal? If yes, the new prosecution is barred for double jeopardy. If no, go to #6. 6. If the first prosecution ended in conviction, was the conviction reversed on appeal? If yes, go to #7. If no, go to #9. 7. Was the reversal based on insufficiency of the evidence? If yes, double jeopardy bars new prosecution. If no, go to #8. 8. Did the original conviction include acquittal on a higher offense? If yes, Δ cannot be charged and tried for an offense greater than the offense on which he was Criminal Procedure Spring 2009 Courtney Gahm convicted. If no, new prosecution if permissible (on same or lesser charge). 9. Did the first prosecution end in a mistrial? If yes, go to #10. If no, go to #13. 10. Did governmental misconduct prompt the court to grant a mistrial? If yes, double jeopardy bars new prosecution. If no, go to #11. 11. Was mistrial declared because of manifest necessity to discontinue the trial (e.g., judge’s illness, hung jury)? If yes, new prosecution is possible. If no, go to #12. 12. Was the mistrial prompted by Δ’s act, whether her misconduct or a successful motion for mistrial? If yes, new prosecution is possible (unless Δ was goaded into mistrial by prosecution). If no, double jeopardy bars new prosecution. Did the first prosecution end in dismissal? (If original trial judge granted Δ’s motion to set aside jury verdict, double jeopardy doesn’t prohibit prosecutor’s appeal.) 13. Was the case dismissed as an acquittal on the merits? If yes, double jeopardy bars new prosecution. If no, prosecutor can successfully appeal dismissal.
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