Also known as: once placed in jeopardy · double jeopardy attachment · jeopardy attaches
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection that bars retrial for the same offense after the defendant has been placed in jeopardy. Jeopardy attaches in a jury trial when the jury is empaneled and sworn.
Orion Orlov faced federal bribery charges. A jury was empaneled and sworn in his case. A government shutdown then forced the judge to discharge the jury without any case-specific necessity. When prosecutors later sought a new trial before a different jury, the court dismissed the charges because Orion had already been placed once in jeopardy.
Orla O'Malley was tried for murder and convicted only of manslaughter. After the conviction was reversed on appeal, the state attempted to retry her for murder. The court held that the first trial had placed Orla once in jeopardy on the greater charge, so the murder prosecution was barred.
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Orson Ochoa was convicted and sentenced to a term of imprisonment. He successfully appealed and obtained a new trial. On retrial the judge imposed a longer sentence without crediting time already served. The court ruled that the original conviction had placed Orson once in jeopardy, limiting the state's power to increase his punishment.
Jeopardy attaches when the jury is empaneled and sworn. After that point the defendant is generally protected against retrial for the same offense.
Supporting sources
No. A mistrial declared without the defendant's consent permits retrial only if manifest necessity exists. Administrative problems such as a government shutdown do not automatically satisfy that standard.
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No. Once jeopardy attaches on the greater offense, the Double Jeopardy Clause bars a later prosecution for any lesser-included offense arising from the same conduct.
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No. Jeopardy attaches only when the jury is empaneled and sworn. Mere selection and seating of the panel does not place the defendant once in jeopardy.
Supporting sources
…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.…