Criminal Procedure And Evidence: Double Jeopardy And Privilege Against Self-Incrimination

Front 1

What is double jeopardy?

Back 1

Once D placed in jeopardy for an offense, D can never again be tried for that "safe offense."

Front 2

When is a second prosecution not barried?

Back 2

If first ended before jeopardy attached.

Front 3

Acquittals are always final and do not permit second trials. What are 2 ways acquittals happen?

Back 3

1) Any finding that "evidence is insufficient" made by trial or appellate court is an acquittal.

2) Conviction of a lesser included offense is an implied acquittal of charged crime.

Front 4

What are 5 exceptions when a second trial is permitted?

Back 4

1) First proceeding ended in a mistrial declared for "Manifest Necessity" (hung jury; very good reason)

2) First proceeding ended in mistrial declared on motion of D

3) First trial ended in conviction reversed on appeal because of procedural error

4) First trial ended in conviction reversed on appeal because verdict was "against weight of [sufficient] evidence"; or

5) Second prosecution is by a different sovereign jurisdiction

Front 5

Under federal constitutional law, jeopardy attaches when--

1) During a jury trial?
2) During a bench trial?

Back 5

1) When jury is sworn

2) When first witness is sworn

Front 6

When does jeopardy attach under TX law?

1) Jury trial

2) Bench trial

Back 6

1) When jury is sworn

2) When both parties have announced ready and the D. pleas to the indictment

Front 7

Successive prosecutions for different offenses are barred only if 1 is a lesser included offense of the other, because only then are the 2 offenses the same.

Describe the Blockburger Test for determining "lesser included" nature of different offenses.

Back 7

1) If each offense contains at least one element not contained in the other, then neither is a lesser included offense of the other and successive prosecutions are permitted

2) Otherwise one is a lesser included offense of the other and successive prosecutions are barred

Front 8

The "collateral estoppel" rule states that acquittal of one offense bars second prosecution for different but related offense if D shows both:

Back 8

1) Precise factual basis for acquittal in first proceeding;

2) That fact also controls in second prosecution

Front 9

Convictions for several related offenses in one proceeding are barred only if the legislature did not ___. If one offense is a lesser included offense of another, it is presumed (rebuttably) that the legislature did not intend conviction for both.

Back 9

Intend to authorize convictions for all.

Front 10

Are multiple prosecutions/convictions permitted if done by separate sovereign governments?

Back 10

Yes

Front 11

What constitutes separate sovereign governments?

1) State and fed

2) Different state

3) State and city or county

Back 11

1) Yes

2) Yes

3) No

Front 12

What ways are available under TX criminal procedure to raise a claim that D's second trial is barred by double jeopardy?

Back 12

Can either:
1) File a pre-trial application for the writ of habeas corpus:
- Judge (not jury) decides issue
- Issue would be resolved before trial
- If she loses, she can immediately appeal

2) File a special plea of former jeopardy;
- Jury would resolve contested issues of fact
- She would raise it during trial
- If convicted, she could appeal at that time

Front 13

What is the privilege against self-incrimination?

Back 13

Authorities cannot compel a person to engage in self-incriminating testimonial behavior.

Front 14

If immunity granted, what happens to privilege against self-incrimination?

Back 14

Privilege no longer applies and person can be compelled to answer.

Front 15

Compare use immunity and transactional immunity.

Back 15

"Use" immunity gives the person no protection from prosecution. But if she is prosecuted, the government cannot use against her as evidence her testimony or any that the Government obtained by using that or information in that.

Transactional immunity gives person immunity from prosecution for any offense arising out of the transaction about which she testifies under the grant of immunity.

** No right to demand one kind over another.

Front 16

A person can be compelled to engage in what kind of behavior?

Define "testimonial" behavior.

Back 16

Nontestimonial self-incriminating behavior.

It is an intentional communication of one's thoughts.