Colorado Technical University
Phase 5 IP
Professor; Jamie Boyd
Flint C. B. Davis
September 23, 2012
In the following paper I will explain double jeopardy and the Fifth Amendment as it pertains to the Case Scenario. Including if I thought not taking the stand in scenario helped or hindered the defendant in question. I will explain the constitutional safeguards that would help the defendant for not taking the stand, as well as the theories of punishment that would apply to this case and why they apply to this example.
1. At what stage in the criminal justice process does double jeopardy attach itself to proceedings? Why? Explain. The follow is a direct excerpt from the Crime and justice in America E-book, “Jeopardy attaches at a defendant’s trial when the jury is empaneled or, in non-jury case, when the first witness is sworn in. The trial needs to go further to judgment of conviction or acquittal for example. Once this threshold has been passed the defendant cannot be retried for the same crime.” However the exceptions to this are that it can be removed or waived in the following situations: mistrials, dismissals, or appeals. In the event of a mistrial the DJ is usually waived and the defendant may be retried for the same offense. In the event of a dismissal before the trial the defendant can be re-indicted and prosecuted for the offense. Finally in the case of an appeal the defendant can appeal their conviction and the case can be reversed because of an error at trial, but it is a rule that the defendant can be retried because of the errors committed during the trial. In this specific instance there has not been “one fair opportunity” to litigate guilt or innocence, and the defendant has waived their right to a DJ claim by appealing. (Crime and Justice in America: A human perspective, sixth edition page 133 Ch. 3) In a military court it is actually called a court martial, in this case if the defendant were in the military at the time they will be charged in the military court instead. Instead of breaking one law they would have broken two laws but in this case it is just civil and not military. There really isn’t much difference except that in some cases the court martial will treat the defendant more fairly. If the defendant is found innocent in the UCMJ court (Uniform Code of Military Justice) they are unable to be tried in a civil court. That is how double jeopardy is applied in military cases.
2. Do you feel that jury in this case might be unduly influenced by the defendant not taking the stand in his own defense? Why or why not? Explain your answer. In the scenario given the “indigent” defendant chose not to take the stand, yes I do believe that the jury’s decision was effected in this case. The reason is because I’m sure the jury knew that the defendant could not afford his own lawyer. Also I’m certain they were coming into the case with prior knowledge so they are not impartial because it stated the citizen in question was a very prominent citizen. The fact that this case had generated a considerable amount of media coverage just compounds the fact that there was no way that jury could be impartial in any way. It is in my opinion the reason the defendant didn’t take the stand is because his public defender advised him not to.
3. What constitutional safeguards, if any, would apply to the defendant not testifying in his own defense? In short the only safeguard that would apply to the defendant not taking the stand in his own defense is the Fifth Amendment in where it states “shall not be compelled in any criminal case to be a witness against themselves”. (Crime and Justice in America: A human perspective, sixth edition page 122 Ch. 3) In this case the defendant may have thought he would incriminate himself and therefore did not take the stand. His Miranda Rights would also come into play and influence his decision to take the stand. The Following is an excerpt from the