Concept
When Jeopardy Attaches
Attachment and incorporation
When Jeopardy Attaches
The earlier gates in this chapter ask whether the proceeding is a criminal prosecution and, when a State is the prosecutor, whether Benton v. Maryland binds it to the Clause. A third gate remains even when both are satisfied, because the Clause forbids putting a person in jeopardy a second time and therefore assumes that a first jeopardy has begun. Attachment is the name for the moment at which a criminal case first places the accused in jeopardy. Before that moment there is no earlier exposure for a later proceeding to repeat, and after it the Clause is engaged and the inquiry shifts to what the government may do next. The Court treats the moment as pivotal: in Crist v. Bretz it agreed with the court of appeals that the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence."1
The Court calls attachment a lynchpin because every later double jeopardy question concerns a first jeopardy that must be located in time. Whether a mistrial, a dismissal, or a conviction set aside on appeal leaves the State free to try again cannot be assessed until it is clear that the accused had already been placed at risk. Crist identified the interests that together produce the federal rule: the finality of judgments, the minimization of harassing exposure to the ordeal of a criminal trial, and the defendant's valued right to continue with the jury already chosen.2 Each interest becomes concrete only after the State has committed the accused to a particular trial. A prosecutor who could end a trial in progress and start afresh could abandon a jury that looked unfavorable or a case that was going badly, and the accused would bear the cost and strain of a second attempt. That is the incentive problem behind the Clause throughout this chapter.
Because the line serves those interests, the Court refused to treat it as a mere convenience. Montana argued in Crist that the sworn-jury moment was an arbitrarily chosen rule of convenience, similar to the federal requirement of a unanimous twelve-person jury that does not bind the States, and that jeopardy might as well attach when the first witness is sworn so that jury and nonjury trials match.3 The Court acknowledged that if the rule were only an arbitrary exercise in line drawing, the argument might well be persuasive and the point of attachment could be moved a few steps forward or backward without constitutional significance.4 It found the sworn-jury rule different, because the rule both reflects and protects the defendant's interest in retaining a chosen jury.5 That finding places the rule at the core of the guarantee rather than at its periphery, and a core rule binds the States through the Fourteenth Amendment in the way the preceding section described.6
The sub-sections below take the gate one rule at a time. The first treats attachment as a threshold that the accused must cross before the Clause's protections come into play. The second teaches the jury-trial rule from Crist, and the third turns to bench trials and guilty pleas, where no jury is sworn and a different event fixes the moment of attachment. An answer goes wrong when it treats attachment as the answer to whether a retrial is barred, because attachment only starts the Clause's protection. Whether the first jeopardy has ended in a way that permits another trial is a separate question, and the attachment gate does not decide it.
Attachment as a Threshold
The Clause's protections do not become available until jeopardy has attached, so attachment is the first fact to locate in any second-prosecution problem.7 Jeopardy here means the risk of conviction and punishment that a criminal defendant faces at trial, and attachment is the moment at which a case first exposes the accused to that risk.8 The Court described the stakes the same way in Crist v. Bretz: only if that point has been reached does any later prosecution of the defendant bring the guarantee even potentially into play.9 The wording of the Clause explains why. It forbids putting a person in jeopardy twice, so a first jeopardy must exist before a later proceeding can repeat it, and an accused who has not yet been subjected to one cannot claim that a new prosecution is a second.10
The purposes of the Clause show why attachment waits for the start of trial. The Clause guards against the harassment and ordeal of repeated trials, which cause expense, anxiety, and hardship even when the defendant is not convicted, against the State rehearsing and improving its case through repeated attempts to convict, and against the loss of a particular jury once it has been selected and sworn.11 Each of those harms presupposes that the State has already committed the accused to a trial. A charge dismissed and refiled before any trial begins gives the State no testimony to polish and takes no chosen jury from the defendant, so the cost to the defendant is small. On the other side of the balance sits society's interest in giving the prosecution one complete opportunity to convict those who violate its laws, and a line drawn at the start of trial leaves that opportunity intact until the trial has actually begun.12
The standard application is a dismissal during jury selection. When charges are dismissed before the jury has been sworn, the Clause does not stop the prosecution from filing new charges for the same offense and trying the defendant on them, so long as it files within the limitations period.13 The same holds for any proceeding that ends before attachment, because the government remains free to prosecute that case a second time.14 The contrasting pole appears in Crist v. Bretz itself. The Ninth Circuit first held that the federal rule on when jeopardy attaches is part of the constitutional guarantee and binds Montana, and only then asked whether the trial judge's dismissal of a defective count rested on manifest necessity; it concluded that it did not, so a second prosecution could not proceed.15 That second question was available only because attachment had been established, and a pretrial dismissal never reaches it.
Treating attachment as a gate has a long history in the Court's own practice. Justice Harlan recalled in his dissent in Twining v. New Jersey that in Shoener v. Pennsylvania the accused claimed a state proceeding violated the Clause, but the Court found that he had not previously been put in legal jeopardy for the same offense, stopped there, and declined to decide whether the Clause restrained the States at all.16 A gate that can dispose of a case before any question about the forum is reached is a threshold in the full sense. Today the forum question has an answer: Benton v. Maryland holds that the Clause applies to the States through the Fourteenth Amendment, so a state defendant cannot be turned away on the ground that the Clause reaches only federal prosecutors.17 The attachment question remains, and it is the same question in both systems, because the same constitutional standards govern state and federal courts.18
The point of attachment has moved over time. At English common law a defendant was put in jeopardy only by a conviction or an acquittal after a complete trial, a rule whose main purpose resembled that of res judicata and collateral estoppel, namely preserving the finality of judgments.19 In the early years of the Republic the constitutional guarantee was read equally narrowly, so a second trial remained permissible when a jury had been discharged without a verdict, because the accused's life or limb could not be said to have been put in jeopardy.20 The modern American rule fixes attachment much earlier, when the jury is empaneled and sworn in a jury trial, and the next two sections take up the rules for each kind of proceeding.21 Attachment occurs at a fixed event, and the Court has resisted efforts to move it to whatever point the defendant is at risk of conviction.22
A first proceeding also counts as a first jeopardy only if the court that conducted it had proper jurisdiction.23 When a court exceeds its jurisdiction, the resulting conviction is void and offers no bar to a new trial.24 The reason lies in what jeopardy is: a tribunal with no power to try the offense cannot expose the accused to a valid judgment, so a later trial in a proper court repeats no real first exposure. The Court stated the same limit in Diaz v. United States, where it said that the jeopardy incident to a trial does not extend to an offense beyond the trial court's jurisdiction.25 Jack McCall shot Wild Bill Hickok in Deadwood, was tried there by local townspeople in an impromptu proceeding, and was acquitted; he was later tried again at Yankton in the South Dakota Territory, convicted, and executed.26 The South Dakota court found no double jeopardy violation because Deadwood was then technically Indian Territory, while the second trial took place within United States territory.27 Absent a facial jurisdictional defect, a prior adjudication is presumed to have been within the court's jurisdiction, so the argument succeeds only when the defect is plain.28
Attachment is necessary but never sufficient. Once jeopardy has attached, a second prosecution is barred only if the first jeopardy has terminated and the second prosecution is for the same offense; a termination can occur through an acquittal, a conviction, a dismissal, or a mistrial, though not every such ending bars further prosecution.29 In Richardson v. United States the Court held that the Clause applies by its terms only if some event, such as an acquittal, has terminated the original jeopardy.30
A mistrial caused by a deadlocked jury ordinarily permits retrial unless the court also enters an acquittal or its equivalent.31 The attachment gate therefore sorts cases into two groups: those in which the Clause is not yet engaged, and those in which a further inquiry begins.
A stem that describes a dismissed first case followed by a refiled second one invites an immediate double jeopardy answer, and the first step in responding is to ask how far the first case progressed. A dismissal during jury selection, before the jury is sworn, ends the analysis in the prosecution's favor, because nothing has yet attached.32 A first case that reached a sworn jury, a sworn first witness in a bench trial, or an accepted guilty plea leaves the Clause engaged and moves the analysis to termination and same offense, a sequence the next sections develop.33
Jury Trials: Sworn Jury
In a jury trial, jeopardy attaches when the jury is empaneled and sworn, and Crist v. Bretz is the decision that makes this sworn-jury rule a constitutional requirement binding on every State.35 Montana had treated jeopardy as attaching only when the first witness was sworn.36 In the case, a jury had been empaneled and sworn when the trial judge dismissed a defective count before any witness testified, and the question became whether the State could prosecute the defendant again on that count.37 The Ninth Circuit held that the federal rule on when jeopardy attaches is an integral part of the constitutional guarantee and therefore binds the States. It added that no manifest necessity supported the dismissal, so a second prosecution was impermissible.38 Only the first of those holdings reached the Supreme Court, because the State appealed solely the ruling that Montana must treat jeopardy as attaching when the jury is empaneled and sworn.39 The manifest-necessity question concerns whether the first jeopardy ended, which later sections address, and Crist itself decides only when the first jeopardy began.
The Court's route to its answer follows a sequence worth copying. On reargument the parties were asked whether the sworn-jury rule is constitutionally mandated and whether the Constitution permits jeopardy to wait until the first witness is sworn in every kind of trial.40 The unstated premise of those questions is that a constitutionally mandated rule would bind Montana, because Benton v. Maryland applies the Double Jeopardy Clause to the States through the Fourteenth Amendment and requires the same constitutional standards in state and federal courts.41 Once that premise is accepted, the forum drops out of the analysis, and the single dispositive question is whether the federal rule is an integral part of the guarantee.42 The question has to be asked because incorporation carries the guarantee itself to the States, and the open issue is which of the federal rules for applying it travel along. Some of those rules are constitutional commands, while others are features of federal court administration that the States may do without, and the Court sorts them by asking whether the earlier rule is critical to implementing the guarantee.43
Montana answered that the sworn-jury line is an arbitrarily chosen rule of convenience, comparable to the federal requirement of a unanimous twelve-person jury, which does not bind the States.44 The Court's reply turned on what the line protects. A defendant's valued right to have the trial completed by a particular tribunal lies within the constitutional guarantee, and that right is the foundation of the rule that jeopardy attaches when the jury is empaneled and sworn.45 The mechanism is easy to trace. By the time the jurors take the oath, the defendant has taken part in choosing the people who will decide the case and has committed to them. A State free to end the trial at that point could shed a jury it disliked and try the case again before a different one, leaving the defendant with a lost tribunal and a second ordeal. A line drawn at the first witness would leave the interval between oath and testimony open to exactly that maneuver. The Court accordingly described the rule as one that both reflects and protects the interest in a chosen jury, and it said that finality of judgments, minimal harassing exposure to trial, and the chosen-jury interest together produced the rule.46
The effect of moving the line separates this rule from the twelve-juror requirement. A jury's size can shrink without defeating the purpose of the jury right, and a six-person jury was held to serve that function in non-capital cases.47 Moving attachment forward to the first witness, by contrast, would strip the chosen-jury interest of protection during the stretch after the oath. The same reasoning answers the appeal to consistency with bench trials, because that argument carries weight only if the sworn-jury line is arbitrary, and the Court found that it is not.48 Having placed the rule at the core of the Clause and away from its periphery, the Court held that Montana's later point of attachment is impermissible under the Fourteenth Amendment, and it affirmed.49 Bench trials, where no jury is sworn, keep a first-witness rule, and the next sub-section takes them up.
The sworn-jury rule operates as a bright line and does not ask how much risk of conviction the defendant has actually run.50 Jeopardy has attached even if the government made no opening statement and called no witness before the case ended.51 As Downum v. United States recognized, jeopardy attaches once the jury is selected and sworn even though no evidence has been taken.52 Martinez v. Illinois restates that jeopardy attaches when the jury is empaneled and sworn, and the Court there resisted the effort to move the line to the moment the defendant is at risk of conviction.53 The rule is also uniform across systems, since it governs both federal and state trials even though some state courts had previously required more before jeopardy attached.54 The caveat from the earlier discussion of jurisdiction carries over, because the oath starts jeopardy only in a court with jurisdiction on an indictment sufficient to support a conviction.55
The reason the line sits this early appears in what the Court has said about jurors discharged in the middle of a trial. In Green v. United States the Court explained that a defendant is placed in jeopardy once put to trial before a jury, so a discharge of the jury without the defendant's consent bars another trial, and that this prevents a prosecutor or judge from discontinuing a trial that appears likely to end without a conviction and starting afresh.56 The same discussion records the limit: jeopardy does not end when unforeseeable circumstances, such as a jury that cannot agree on a verdict, make completion of the trial impossible.57 Attachment under the sworn-jury rule therefore starts the protection without deciding every retrial question, which is why the termination rules in later sections are treated separately.
The two poles of the rule differ in one fact, the oath. In Crist the dismissal came after the jury was sworn, so Montana's insistence that nothing had attached until a witness testified failed.58
On an exam stem that describes a jury trial ending early, the first move is to find the oath. The common error is to treat the absence of testimony as the absence of jeopardy, an argument that borrows the bench-trial rule, while in a jury trial no witness need have testified for jeopardy to attach.59
Bench Trials and Guilty Pleas
The sworn-jury rule fixes attachment at an event that exists only when a jury does. Two common ways of resolving a prosecution have no jury to swear: the bench trial, in which the defendant waives a jury and the judge decides the facts, and the guilty plea, which ends the case without a trial at all. The law supplies a separate marker for each. In a bench trial, jeopardy attaches when the first witness is sworn, and in a case resolved by a guilty plea it attaches when the judge accepts the plea and enters the conviction.61 Both markers identify the first moment at which the defendant is exposed to a decision that binds, which is the function the jurors' oath performs in a jury trial, and each marker deserves its own explanation.
In a bench trial the decision-maker is the judge from the outset, so no oath of jurors can mark the moment the defendant commits to a tribunal. The nearest equivalent is the point at which evidence on guilt begins to reach that judge, and the swearing of the first witness marks it, which is why this is often called the first-witness rule.62 Opening statements are the lawyers' forecasts of what the evidence will show and are not evidence themselves. The rule therefore holds even when both sides have already made them, and a case that ends after openings but before any witness is sworn has not yet put the defendant in jeopardy.63 The same rule governs a case tried to the judge after the defendant waives a jury.64
Some decisions phrase the bench-trial marker as the point at which the court begins to hear evidence, as in Serfass v. United States, and they add that the evidence must be taken to decide guilt or innocence.65 Testimony heard for some other purpose therefore does not start jeopardy. In an ordinary trial the two formulations land on the same moment, since the first witness sworn is the first source of the evidence on which guilt will be decided, so the first-witness statement is the one to carry into an exam answer, with the purpose of the evidence kept in mind.
A guilty plea removes the trial entirely, so there is neither a juror to swear nor a witness to call, and the marker becomes an act of the court. Jeopardy attaches when the judge accepts the plea and enters the conviction.66 The timing follows from what a plea is. Until the court accepts it, a tendered plea is only an offer: the judge may decline it, and nothing yet ties the defendant to any outcome. Acceptance and entry of the conviction convert the offer into a judgment, which is the first point at which the defendant faces a binding result. The protection can be surrendered afterward, because a defendant who withdraws a guilty plea waives the protection against being tried on the charge.67
Seen together, the three attachment rules apply one idea: jeopardy begins when the defendant has been committed to a particular decision-maker or exposed to a particular binding outcome. The jurors' oath commits the defendant to the chosen jury, the first witness's oath exposes the defendant to the judge's decision on guilt, and the court's acceptance of a plea exposes the defendant to the resulting conviction. That shared idea also explains an exchange in Crist v. Bretz, where the parties were asked on reargument whether the Constitution permits jeopardy to wait until the first witness is sworn in every kind of trial, jury or nonjury.68 The Court observed that if the sworn-jury line were an arbitrary exercise in line-drawing, consistency between jury and nonjury trials might favor the first-witness point for both.69 It held that the line is not arbitrary, because it reflects and protects the defendant's interest in retaining a chosen jury.70 That interest has no counterpart in a trial before a judge, where no jury is chosen, which is why the first-witness rule survives there. Crist itself decided only the jury question, so the bench-trial and plea markers are best learned as settled rules that sit beside the sworn-jury holding and not as parts of it.71
On an exam stem with no jury, the first step is to identify how the case was proceeding, because the marker differs: a bench trial looks for a sworn first witness, and a plea case looks for the court's acceptance and entry of the conviction. The frequent error is to treat opening statements as the start of jeopardy in a bench trial, or to treat the defendant's offer to plead as though it were the accepted plea. The reverse mistake is to hunt for a sworn jury in a bench trial and conclude that jeopardy can never attach there. Attachment remains only the first gate in each setting, and whether the first jeopardy terminated and whether the second prosecution is for the same offense follow in the sequence assembled in the next section.72