Concept

Applying the Threshold Questions

Attachment and incorporation

Applying the Threshold Questions

The earlier sections each supplied one filter, and the filters work best as a single threshold sequence run in a fixed order. A civil proceeding ends the analysis at once, because the Clause does not apply to civil cases.¹ A criminal case that ended before jeopardy attached ends at the third filter, because before that point the accused has not been subjected to a first jeopardy.² Only a defendant who clears every filter has a live claim that needs the harder analysis, and taking the filters in order keeps that effort from being spent on claims that fail at the start.

Exam Analysis Steps

Because each filter either ends the inquiry or hands the case to the next one, the sequence is best run as a series of questions asked in a fixed order. The steps are these:

Ask whether the proceeding is criminal, meaning that it can end in a sanction that follows from a criminal conviction, whatever the type or severity of the punishment, since a civil sanction does not count even when it carries punitive damages.³
If a State is the prosecutor, recognize that the Clause binds it through the Fourteenth Amendment on the same standards that apply to the federal government, so no separate state version of the guarantee has to be worked out.⁴
Ask whether jeopardy attached in the first proceeding under the marker for that kind of proceeding: the jury empaneled and sworn, the first witness sworn in a bench trial, or the plea accepted and the conviction entered.⁵
If the first three questions are answered yes, treat the Clause as in play and turn to whether the first jeopardy terminated and whether the second prosecution is for the same offense.⁶

The first question screens for the kind of proceeding. The Clause guards against a second risk of criminal conviction, so a proceeding that cannot end in a conviction cannot start the clock. The phrase jeopardy of life or limb reaches every criminal sanction, including imprisonment, a fine, or probation, while a civil judgment does not place the defendant in jeopardy even when punitive damages are added.⁷ The legislature's label starts the inquiry. In Hudson v. United States the Court asked first whether the legislature indicated a preference for a civil or criminal penalty, and then whether the scheme was so punitive in purpose or effect as to turn a civil remedy into a criminal one, which is why bank officers fined and barred from banking by the Comptroller of the Currency could later be indicted for the same conduct.⁸

The second question is a pass-through for state prosecutions, but it has to be stated. The Fifth Amendment is addressed to the federal government, and Benton v. Maryland held that the Clause applies to the States through the Fourteenth Amendment, so a state prosecution faces the same constitutional bar as a federal one.⁹ Incorporated protections are enforced against the States under the same standards that govern them in federal court, and a diluted state version is not available.¹⁰ If a State could apply a weaker form of the guarantee, its content would depend on which court happened to hear the case, and a defendant's protection would vary with the prosecuting sovereign. Because the standards are identical, the attachment markers in the third question govern state and federal trials alike, which is how the sworn-jury rule reached Montana in Crist v. Bretz.¹¹

The third question requires matching the marker to the proceeding, and the court that conducted the first proceeding must also have had jurisdiction, because a conviction entered by a court exceeding its jurisdiction is void and leaves no bar to a new trial.¹² Until the marker occurs, the defendant has not been put in a first jeopardy, and a prosecutor whose charges are dismissed earlier may bring new ones for the same offense within the limitations period.¹³

Passing the first three questions does not decide the case. It puts the Clause in play, and the remaining issues are separate ones: whether the first jeopardy terminated, whether the second prosecution is for the same offense, and the related questions about collateral estoppel, retrial after mistrial or reversal, and dual sovereignty.¹⁴ Later readings take each of those up, and none of them is reached by a defendant who fails an earlier question.

The sequence can be run on the facts of Crist. Montana, a State, prosecuted a criminal case, the jury was empaneled and sworn, and the charge was dismissed before any witness testified, after which the State sought to proceed on a new one.¹⁵ The proceeding was criminal, the Clause bound Montana, and jeopardy attached at the oath, so the defendant cleared all three questions, and after attachment the defendant is generally protected against being retried for the same offense.¹⁶ The word generally matters, because attachment makes the protection available without deciding whether the first jeopardy ended in a way that bars a new trial. Remove the oath and the answer reverses: if the same charge is dismissed during jury selection, before the jury is sworn, the first two questions are still answered yes, but jeopardy never attached and the State may refile within the limitations period.¹⁷

Hypothetical Illustration

A contractor is accused of billing fraud, and the first proceeding ends in a dismissal before any evidence is heard. If that proceeding was a civil enforcement action for a monetary penalty, the first question fails, and a later criminal charge for the same billing faces no bar under the Clause. If it was a criminal jury trial and the jurors had been sworn, all three questions are answered yes whether a federal prosecutor or a state prosecutor brought the case, because the same standards govern both, and the contractor's claim moves on to termination and same offense. If it was a criminal bench trial and the dismissal came before the first witness was sworn, the first two questions are answered yes and the third fails, so the prosecutor may refile within the limitations period.

On an exam stem, run the questions in order and stop at the first one answered no, naming the reason. The common error is to treat clearing the gates as a finished analysis, announcing a double jeopardy violation as soon as the jury was sworn, when termination and same offense are still undecided.¹⁸ The reverse error is to hesitate over a state prosecution as if the Clause might not apply to it, when incorporation already settles that step.¹⁹

Applying the Threshold Questions

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