Introduction

Incorporation and Attachment of Jeopardy

Introduction

The Double Jeopardy Clause is one clause in a crowded amendment. The Fifth Amendment also contains the grand jury requirement, the privilege against self-incrimination, the due process guarantee, and the takings clause, and the double jeopardy language sits among them: no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."¹ Two phrases carry most of the weight. "Same offence" fixes how closely a second prosecution must resemble the first, and "twice put in jeopardy" fixes what counts as a repetition. From that one sentence the courts have built an intricate body of rules, and the cases do not sort neatly into any single agreed set of categories.² The usual temptation is to start with the interesting phrases, "same offence" or retrial after a mistrial, and a problem like the following shows why that skips something.

The scenario cannot be resolved until two gatekeeping questions are answered. The first asks whether the Clause governs this prosecution at all. Its literal words, "life or limb," might suggest a reach limited to death or bodily punishment, yet the protection extends to crimes of every type and severity, and it does not apply in civil cases.³ When a state is the prosecutor, that question has a second layer, because a guarantee written into the Fifth Amendment does not automatically reach a state prosecution. Whether it does is the problem of incorporation. The second gatekeeping question asks whether jeopardy has attached. Until it has, the protections of the Clause do not come into play, since the accused has not yet been subjected to a first jeopardy, and a dismissal at that early stage leaves the prosecution free to refile within the limitations period.⁴ That is why the detail that the jury had already been sworn matters in the scenario. A yes on both gatekeeping questions still would not finish the analysis, because later steps remain.

This chapter answers the two gatekeeping questions in order. It begins with the text of the Clause and the purposes behind it, since the Court's answers on scope and timing draw on those purposes. It then turns to incorporation, where Palko v. Connecticut and Benton v. Maryland bear on whether a state prosecution is subject to the Clause. Last, it takes up attachment, where Crist v. Bretz supplies the rule for jury trials, a rule that applies in both federal and state courts, and the rules for bench trials and guilty pleas follow.⁵ Whether the first jeopardy has ended, whether the second prosecution is for the same offense, and whether the same sovereign brought both are questions for later chapters.⁶ The first step is the text itself, read closely for what it covers.