As bar exam results from the July 2022 exam begin to be released in states around the country, we will be posting several real MBE questions every week, with the answer to be posted the following day. Please feel free to email us with any questions about these, and if you were unsuccessful on the bar exam, submit your score report here for a free score report evaluation from our bar exam experts!

MBE Question of the Day – Answer

Issue: When does the right against double jeopardy attach?

Rule: The Fifth Amendment guarantee against double jeopardy prevents an individual from being
tried and punished for the same criminal offense twice. A civil action based on the same conduct out
of which the criminal action arises is permissible. The general rule is that once a defendant has been
tried, whether convicted or acquitted, that defendant may not be tried for that offense again. There
are two main situations in which the issue of double jeopardy arises: being tried and being punished.
Being tried: is the defendant being retried for the same crime for which he has been previously tried
or is the defendant being tried twice when he is tried for two or more different crimes, but the crimes
are sufficiently similar to be considered the same offense? The rule is where each crime requires that
an additional element be proved that the other crime does not include, the crimes are sufficiently
different to avoid double jeopardy issues. So for example, a defendant could not be tried for both
robbery and larceny (because larceny does not have an additional different element than robbery).
Being punished: When is an action against a defendant considered punitive enough to be considered
a punishment? This issue arises when the punishment involves fines. Occasionally, a state will have
a separate trial to recover law enforcement and other costs from the defendant. Such actions are not
generally deemed punishment. Double jeopardy only applies to prevent a subsequent trial after a criminal action has commenced.
For a jury trial, the action commences (and the right against double jeopardy attaches) when the jury
has been impaneled and sworn in. For a bench trial, the right attaches when the first witness is sworn
and the court begins to hear evidence.

Analysis: Here, the rule against double jeopardy does not apply. Whether the defendant was
seeking a jury or a bench trial, the attachment of double jeopardy did not yet occur – with a jury trial,
attachment occurs when the jury is impaneled and sworn in and with a bench trial, attachment occurs
when the first witness is sworn. Under the facts here, neither of these events occurred and thus the
right against double jeopardy never attached. Remember, double jeopardy is based on the principle
that an individual should not be tried and/or punished for the same crime twice. It does not prevent
the re-filing of charges that were dropped before the defendant was even tried.

(D) is correct because double jeopardy attaches when the jury has been impaneled and sworn in or
when the first witness is sworn in if a bench trial.

(A) is incorrect because double jeopardy protections do not attach upon arrest.

(B) is incorrect because double jeopardy protection attaches even before conviction; it attaches at
the beginning of trial.

(C) is incorrect because it is irrelevant. If double jeopardy protection did not attach, the defendant
may be charged with the same crimes he was once before arrested on.