Also known as: jeopardy attaches · jeopardy attachment · double jeopardy attachment
Written by attorneys · grounded in primary & secondary sources — see below
The point during a criminal prosecution at which the Double Jeopardy Clause begins to shield a defendant from successive prosecutions for the same offense. In a jury trial the protection takes hold when the jury is empaneled and sworn. Attachment for a lesser included offense also bars later prosecution of the greater offense arising from the same conduct.
Anthony Arnold was convicted of robbery after a jury trial for an armed holdup of a convenience store. Weeks later the state filed a new information charging him with larceny based on the same taking of cash from the registers. Because jeopardy had already attached to the robbery prosecution, the subsequent larceny charge was dismissed.
Alexandra Armstrong faced computer-hacking charges in state court. Prospective jurors were questioned and seated, yet the judge declared a mistrial before administering the oath because a witness failed to appear. The state later sought to retry her before a new panel. Because the jury had never been sworn, jeopardy never attached and the second trial proceeded.
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Austin Abbott pleaded guilty in municipal court to misdemeanor trespass after entering a construction site at night. The court accepted the plea on the record after a full colloquy and deferred judgment only to obtain a restitution report. When the state later filed felony burglary charges based on the same entry, the court dismissed the new information because jeopardy had attached upon acceptance of the plea.
Jeopardy attaches when the jury is empaneled and sworn. Once that formal step occurs the defendant is protected against retrial for the same offense unless the first proceeding ends in a manner consistent with double jeopardy principles such as manifest necessity.
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Yes. Attachment of jeopardy for a lesser included offense bars subsequent prosecution for the greater offense arising out of the same conduct because the greater offense requires no proof beyond that required for the lesser offense plus additional elements.
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The Double Jeopardy Clause bars retrial. Once the jury is empaneled and sworn the defendant may not be tried again for the same offense unless the mistrial was justified by manifest necessity or the defendant's consent.
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…or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches." Downum v. United States , 372 U.S. 734, 736. And finally, it prevents the State, following conviction , from retrying the defendant again in the hope of securing a greater penalty.…