Also known as: once placed in jeopardy · double jeopardy attachment · jeopardy attaches
Written by attorneys — see sources 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.
Everett Green was indicted by a District of Columbia grand jury in two counts. The first count charged that he had committed arson by maliciously setting fire to a house. The second count accused him of causing the death of a woman by this alleged arson which if true amounted to murder in the first degree punishable by death. Green entered a plea of not guilty to both counts and the case was tried by a jury. After each side had presented its evidence the trial judge instructed the jury that it could find Green guilty of arson under the first count and of either first degree murder or second degree murder under the second count. The jury found Green guilty of arson and of second degree murder but did not find him guilty on the charge of murder in the first degree. Its verdict was silent on that charge. The trial judge accepted the verdict, entered the proper judgments and dismissed the jury. Green was sentenced to one to three years' imprisonment for arson and five to twenty years' imprisonment for murder in the second degree. Green appealed the conviction of second degree murder. The Court of Appeals reversed that conviction because it was not supported by evidence and remanded the case for a new trial. On remand Green was tried again for first degree murder under the original indictment. At the outset of this second trial he raised the defense of former jeopardy but the court overruled his plea. This time a new jury found him guilty of first degree murder and he was given the mandatory death sentence. Green appealed again. Sitting en banc, the Court of Appeals rejected his defense of former jeopardy and affirmed the conviction. The Supreme Court granted certiorari.
View caseOrson 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.
Respondent Pearce was convicted in a North Carolina court upon a charge of assault with intent to commit rape and sentenced to prison for a term of 12 to 15 years. Several years later the North Carolina Supreme Court reversed his conviction upon the ground that an involuntary confession had unconstitutionally been admitted in evidence against him. He was retried, convicted, and sentenced by the trial judge to an eight-year prison term, which when added to the time he had already spent in prison amounted to a longer total sentence than that originally imposed. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern District of North Carolina, which held that the longer sentence imposed upon retrial was unconstitutional and void, and the Court of Appeals for the Fourth Circuit affirmed. Respondent Rice pleaded guilty in an Alabama trial court to four separate charges of second-degree burglary and was sentenced to prison terms aggregating 10 years. Two and one-half years later the judgments were set aside in a state coram nobis proceeding upon the ground that Rice had not been accorded his constitutional right to counsel. He was retried upon three of the charges, convicted, and sentenced to prison terms aggregating 25 years with no credit given for the time he had already spent in prison. Rice then brought this habeas corpus proceeding in the United States District Court for the Middle District of Alabama. That court held that the state trial court had acted unconstitutionally in failing to give credit for time served and in imposing harsher sentences upon retrial. The Court of Appeals for the Fifth Circuit affirmed. The Supreme Court granted certiorari in both cases.
View caseJeopardy 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.
Supporting sources
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.
Supporting sources
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.…