Double Jeopardy

Front 1

Double Jeopardy—Time of Attachment

Back 1

CRIMINAL PROCEEDINGS ONLY

Jury Trial: When the jury is sworn in.

Bench Trial: When the first witness is empaneled.

Guilty Plea: When the court accepts the defendant's plea unconditionally.

Front 2

Double Jeopardy—Unsworn Juries

Back 2

In Michigan, double jeopardy is not implicated by verdicts returned by unsworn juries.

Front 3

Double Jeopardy—Acquittal Based on Error

Back 3

In MI, retrial is barred where a trial court grants an acquittal because the prosecution failed to prove an element of the offense that was not actually required by law.

Front 4

Double Jeopardy—Generally

Back 4

Both federal and Michigan double jeopardy provisions afford three related protections:

(1) against a second prosecution for the same
offense after acquittal;
(2) against a second prosecution for the same
offense after conviction; and
(3) against multiple punishments for
the same offense.

Front 5

Double Jeopardy—Purpose

Back 5

Successive Prosecutions: To preserve the finality of criminal judgments, and to protect against prosecutorial overreach.

Successive Punishments: To protect against the imposition of punishment greater than legislatively intended.

Front 6

Double Jeopardy—Blockburger Test

Back 6

When multiple charges are brought against a defendant for conduct related to a single criminal transaction, the court will engage in a two-step inquiry:

(1) If multiple punishment is expressly intended by the legislature, then no double jeopardy violation will be found.

(2) Even where such intent is absent, if each charge requires proof a fact that the other does not, then the charges do not constitute double jeopardy, not withstanding a substantial overlap of proof.

Front 7

Double Jeopardy—Examples of Legislative Intent

Back 7

The following laws contain a clear legislative intent that multiple punishments be allowed:

(1) Felony Firearm and predicate;
(2) Home invasion & predicate

Front 8

Double Jeopardy—MI violations

Back 8

(1) operating/maintaining a meth lab & O/M a meth lab within 500 feet of a residence;
(2) aggravated indecent exposure & indecent exposure;
(3) assault with intent to rob while armed & armed robbery

Front 9

Double Jeopardy—Conviction Overturned on Appeal

Back 9

Double Jeopardy does not prohibit retrial following a successful appeal unless

(1) the reversal was based on insufficient evidence; or
(2) the defendant was 'implicitly acquitted' of the charge in the prior proceeding by the jury's return of a lesser-grade conviction (e.g., the prosecutor charged the defendant with 1st degree CSC, and the jury convicted him of 2nd degree CSC).

Front 10

Double Jeopardy—Aggravated Offenses

Back 10

Where one statute incorporates most of the elements of a base statute and adds an aggravating conduct element with an increased penalty compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes.

Front 11

Double Jeopardy—Same Sovereign

Back 11

Double Jeopardy bars retrial only for the same offense by the same sovereign. State and local governments, however, are the same sovereign.

Front 12

Double Jeopardy—Exceptions

Back 12

Double Jeopardy will not be found in the following situations:

(1) jury unable to reach unanimous decision;
(2) mistrial, for manifest necessity, or upon D's motion unless deliberately provoked by the prosecution;
(3) successful appeal, unless based on insufficiency of the evidence;
(4) breach of plea agreement by defendant.