Jeopardy Without a Verdict

Jeopardy Without a Verdict

The constitutional text protects a person from being twice put in jeopardy for the same offense, and the phrase says nothing about a verdict.¹ That silence matters because the earliest understanding of the Clause treated a person whose jury was discharged without a verdict as never having been in jeopardy at all, on the theory that jeopardy required a completed trial.² Under that reading a trial that collapsed midway cost the government nothing, since the defendant could simply be tried again. The reading did not endure. Beginning with United States v. Perez, it became firmly established by the end of the nineteenth century that a defendant could be put in jeopardy in a prosecution that ended in neither conviction nor acquittal.³ The first question in any retrial problem is therefore one of timing: had jeopardy attached when the first proceeding ended?

For a jury trial the answer is fixed. Jeopardy attaches when the jury is empaneled and sworn, and from then on the defendant is generally protected against being retried for the same offense.⁴ Crist v. Bretz arose from a Montana prosecution, so the question there was whether the federal swearing rule is an integral part of the constitutional guarantee and therefore binds the states through the Fourteenth Amendment.⁵ The rule has since been applied in both federal and state trials.⁶ The line falls at the swearing of the jury rather than at the first testimony, as Downum v. United States had already shown when the Court barred a second prosecution of a defendant whose first trial ended just after the jury was sworn and before any testimony was taken.⁷ Students lose this issue when they wait for evidence to begin, because in a jury trial the oath to the jury, not the first witness, marks the moment.

The reason for placing the line at the oath is the defendant's interest in keeping the jury that was chosen, which the Court has described as a "valued right to have his trial completed by a particular tribunal."⁸ Once jurors are sworn, a specific group of people is committed to deciding the case. If the judge discharges them without the defendant's consent, the prosecutor can present the case again to a different panel, so a discharge the defendant did not choose lets the government shop for a more favorable decision-maker. The interest has deep roots, since a long tradition held that a jury, once banded together, should not be discharged until it had announced a verdict.⁹ Because the jury rule rests on that interest in a chosen jury, a trial with no jury to swear needs a different marker, and in a bench trial jeopardy attaches when the first witness is sworn.¹⁰

Behind the tribunal interest sits the wider purpose of the Clause. The State, with all its resources, should not be allowed to make repeated attempts to convict, because each attempt subjects the accused to embarrassment, expense, and ordeal, keeps the accused in a state of anxiety and insecurity, and raises the chance that an innocent person will eventually be found guilty.¹¹ The two ideas do different work. The tribunal interest explains when protection begins, because the interest in a particular jury arises the moment that jury is sworn. The anti-repeated-attempts idea explains why a trial that never reached a verdict still engages the Clause, since a second trial lets the prosecutor use what the first one revealed about the strengths of the case and the shape of the defense.¹²

That protection has a counterweight, and much of this chapter is about it. The defendant's right to the first jury is real, but it is not absolute, because a trial can fail for reasons that make completion impossible. A criminal trial depends on the health and availability of witnesses, jurors, lawyers, and parties, and a rule forbidding retrial whenever circumstances force the jury's discharge without the defendant's consent would exact too high a price for the added security it provides.¹³ The cost is concrete. If every failed trial after attachment ended the case, a single juror who refuses to join a verdict, or a flaw in the charge that would doom any conviction, would let a guilty defendant go free. The Court has therefore allowed the defendant's right to a particular tribunal to give way, in some circumstances, to the public's interest in fair trials that end in just judgments.¹⁴

The vehicle for that exception is the manifest necessity standard, under which the government may retry after a mid-trial ending the defendant did not choose when ending the trial was genuinely required to keep the ends of public justice from being defeated. The standard comes from Perez itself, where a jury deadlocked, a mistrial was declared without the defendant's consent, and the Court held that a second trial did not violate the Fifth Amendment.¹⁵ Perez is understood to mean that jeopardy had attached in the first trial and that retrial was nonetheless permitted.¹⁶ Statements that the prosecutor is entitled to only one opportunity to try a defendant therefore overstate the rule, because mistrials that bar a second trial are the exception rather than the norm.¹⁷

The protection also has a floor. Before jeopardy attaches, the retrial question does not arise in this form, because the defendant has not yet been put through a first jeopardy. If charges are dismissed while the jury is still being selected, before it is sworn, the prosecutor may file new charges for the same offense and bring the defendant to trial, subject only to the statute of limitations.¹⁸ The same is true of any pretrial dismissal, whether it follows the disappearance of a key witness or the grant of a suppression motion.¹⁹ In Serfass v. United States the Court allowed the government to appeal a pretrial dismissal for exactly this reason: jeopardy had not attached, so a new prosecution would not make the defendant run the gauntlet twice, and a reprosecution gives the government no second chance because it has not yet had a first.²⁰

Attachment therefore marks the start of the protection and nothing more. After that point the question becomes how the first proceeding ended and whether that ending leaves the government free to try again. The next section takes up the cleanest such ending, the jury that cannot agree.