Also known as: jury empaneled and sworn · empaneled and sworn jury · jury sworn · empanelment complete · double jeopardy attaches
Written by attorneys — see sources below.
The procedural moment in a jury trial at which double jeopardy protection attaches under the Fifth Amendment. From this point forward the defendant is generally protected against retrial for the same offense unless the proceeding terminates in a manner consistent with double jeopardy principles.
Jeffrey Jha faced fraud charges in state court. After the jury was empaneled and sworn, the prosecution's main witness fell ill and the judge discharged the panel over Jeffrey's objection. When the state later attempted to retry him before a new jury, the court dismissed the second prosecution because the constitutional protection had already taken hold at the swearing of the first jury.
Jamal Jefferson stood trial on hacking charges. Prospective jurors were questioned and seated, but the judge declared a mistrial over Jamal's objection before administering the oath because a key witness failed to appear. The state then refiled the charges. Because the jury had never been sworn, the court permitted the second trial without violating double jeopardy.
In December 1970, while his military induction had been deferred for two years of Peace Corps service, Serfass requested Selective Service Form 150 for conscientious objectors. After submitting the completed form and meeting with his local board on January 13, 1971, the board informed him by letter that it had unanimously decided not to reopen his file because there was no change over which he had no control, and he remained under orders to report for induction on January 18, 1971. Serfass appeared at the examining station but refused induction. A grand jury indicted Serfass for willfully failing to report for and submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a). At arraignment he pleaded not guilty and demanded a jury trial, with the trial date set for January 9, 1973. Prior to trial, Serfass filed a motion to dismiss the indictment on the ground that the local board did not state adequate reasons for refusing to reopen his file, supported by his affidavit stating he had applied for conscientious objector status and received only the board's letter. He also moved to postpone the trial pending resolution of the motion to dismiss. On January 5, 1973, the District Court granted the continuance and set oral argument on the dismissal motion. After briefs and argument, the court ordered production of Serfass's Selective Service file. On July 16, 1973, the District Court dismissed the indictment, relying on facts from the affidavit, the Selective Service file, and the parties' stipulation that the information submitted established a prima facie claim for conscientious objector status based on late crystallization. The United States appealed the dismissal to the United States Court of Appeals for the Third Circuit under 18 U.S.C. § 3731. Serfass moved to quash the appeal for lack of jurisdiction, contending that further prosecution was barred by the Double Jeopardy Clause. The Court of Appeals rejected the jurisdictional challenge, noting that no jury had been empaneled and sworn and that Serfass had not waived his right to a jury trial. The Supreme Court granted certiorari to address the jurisdictional question arising from the pretrial dismissal.
View caseJeopardy attaches when the jury is empaneled and sworn. This moment triggers the defendant's protection against retrial for the same offense.
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Yes. Once the jury is empaneled and sworn, the defendant is in jeopardy even if no evidence has been taken. A subsequent retrial is barred absent manifest necessity or the defendant's consent.
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Jeopardy does not attach. The state may retry the defendant because the formal swearing step that triggers protection never occurred.
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No. After the jury is empaneled and sworn, a mistrial granted at the prosecution's request without manifest necessity bars retrial. Surprise or a desire for additional preparation does not qualify as manifest necessity.
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