Criminal Procedure: Double Jeopardy

When jeopardy attaches:

• Criminal trials (jury) -- when jury is sworn
• Criminal trials (judge) -- when first witness is sworn
• Does NOT attach in civil cases (or criminal proceeding for tax fraud)
  

EXCEPTIONS permitting re-trial:

• Jury is unable to agree on a verdict
• Mistrials for manifest necessity (Midway through D's trial, he has to go to hospital. It is not reasonable to keep a jury impaneled)
• Retrial after successful appeal
• Breach of agreed upon plea bargain by D (If D breaches an agreed upon plea bargain, his plea and plea sentence can be withdrawn and the original charges can be reinstated)

Two crimes do not constitute the same offense if each requires proof of an additional element that the other does not.

Separate Sovereigns Doctrine: Double jeopardy prohibition does not prevent dual prosecution by separate sovereigns. D can be prosecuted for the same criminal conduct by a federal court, then a state court or by 2 separate state courts. State and the locality are the same sovereigns.

Lesser included offenses: Being put in jeopardy for the greater offense bars retrial for the lesser included offense. Being put in jeopardy for the lesser offense bars retrial for the greater offense. (EXCEPTION: Trial for battery. V dies. Murder trial is OK)