Black-letter propositions
- 01
Jeopardy attaches when a jury is sworn or the first bench-trial witness is sworn.
- 02
Offenses are the same unless each requires proof of a fact the other does not, subject to legislative intent.
- 03
A hung jury permits retrial; a prosecution-requested mistrial needs manifest necessity, while defendant-requested mistrial usually permits retrial absent intended provocation.
- 04
A reversal for insufficient evidence bars retrial; reversal for trial error usually does not.
- 05
A plea must be knowing, voluntary, and intelligent with competent counsel and awareness of nature and direct consequences.
- 06
The Eighth Amendment limits grossly disproportionate punishment and uses heightened capital rules.
Use this attack sequence under time
Frame the issue
Identify sovereign, charges, and history.
Resolve the next checkpoint
Find attachment and termination.
Resolve the next checkpoint
Compare statutory elements.
Resolve the next checkpoint
Analyze mistrial or appeal exception.
Finish the conclusion
For plea, examine colloquy, voluntariness, basis, and counsel.
Common wrong turns
- Same conduct can support distinct offenses.
- States and the federal government are separate sovereigns; a state and its municipalities are not.
- Government generally cannot appeal an acquittal even if legally wrong.
Worked example
A conviction is reversed because the evidence was legally insufficient, and the state seeks a second trial.
Retrial is barred because insufficiency is equivalent to acquittal. Ordinary trial error would allow retrial.
Practice this topic
Double jeopardy
The Fifth Amendment says no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Cornell says the clause protects against being prosecuted twice for the same crime and applies to the states under Benton v. Maryland. It generally covers criminal punishment, though civil sanctions applied in a punitive manner may qualify, as in Halper, while civil asset forfeiture was held remedial and not punishment in United States v. Ursery.
Cornell notes the protection applies when a person is tried as a juvenile and then again as an adult for the same offense, as in Breed v. Jones.
Punishment and proportionality
The Eighth Amendment says excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Cornell describes cruel and unusual punishment as an excessive penalty disproportionate to the crime, retribution that causes deliberate pain, or conditions that violate basic human rights standards, with the Court establishing evolving standards.
On proportionality, Solem v. Helm held a sentence may not be disproportionate and listed factors of offense severity, harshness of the penalty and sentences elsewhere. Harmelin later overturned that prohibition but left open extreme cases, and Cornell notes a gross proportionality principle in later cases.
Frequently asked questions
What is the controlling rule for double jeopardy, pleas, and punishment?+
Double jeopardy protection turns on attachment, termination, same-offense elements, sovereign identity, and the reason a first proceeding ended.
How should I analyze double jeopardy, pleas, and punishment on the bar exam?+
Identify sovereign, charges, and history. Find attachment and termination. Compare statutory elements. Analyze mistrial or appeal exception.
What does the Double Jeopardy Clause protect against?+
Being prosecuted twice for the same crime, according to the Fifth Amendment as described by Cornell.
Does double jeopardy apply to states?+
Yes, through the incorporation doctrine following Benton v. Maryland, according to Cornell, so state prosecutions are covered too.
Can civil sanctions raise double jeopardy problems?+
Yes, when they are punitive in nature, though Cornell says civil asset forfeiture was held remedial in United States v. Ursery.
What does the Eighth Amendment prohibit?+
Excessive bail, excessive fines and cruel and unusual punishments, according to the text of the Eighth Amendment.
What factors did Solem v. Helm list for proportionality?+
The severity of the offense, the harshness of the penalty, sentences imposed on others in the same jurisdiction and sentences in other jurisdictions.