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When is a trial considered to have happened vis-a-vis double jeopardy? In other words, at one point is a person considered to be tried for an offense and cannot be tried again? At the arraignment or at the judgement?

To be more specific, if a person has been arraigned, can the prosecutor abandon the case and then indict the person again later for the same offense, or are they considered to be tried after the arraignment occurs.

If the double jeopardy only becomes effective when a judgement is rendered, then a prosecutor can theoretically start a trial, abandon it, then try the person again, abandon it again, and so on indefinitely. Is that how it is?

  • "if a person has been arraigned, can the prosecutor abandon the case and then indict the person again later for the same offense, or are they considered to be tried after the arraignment occurs." applying the correct two answers given, the answer to this question is that they can be tried again if the prosecutor abandons it before the jury is sworn or evidence is first received in a bench trial (unless the prosecutor enters into an express agreement not to do so, but then the bar is the agreement and not double jeopardy). – ohwilleke Jun 29 '18 at 0:43
  • The dirty trick would be for the prosecutor to voluntarily dismiss the case late in jury selection, but before the jury is sworn, because the prosecutor doesn't like the looks of the jury pool that is emerging in the case. Speedy trial rules, as noted, somewhat limit these abuses. – ohwilleke Jun 29 '18 at 0:44
  • I've added a United States tag because the concepts involved are particular to the U.S. court system and a criminal law tag because this does not apply in civil cases. – ohwilleke Jun 29 '18 at 0:46
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Jeopardy can attach at one of two different points:

  • In a trial to a jury, jeopardy attaches when potential jurors are sworn in for voir dire, the process in which the court and counsel question them to determine their eligibility and desirability for membership on the jury. Martinez v. Illinois, 134 S. Ct. 2070, 2074 (2014) ("There are few if any rules of criminal procedure clearer than the rule that 'jeopardy attaches when the jury is empaneled and sworn.'”)
  • In a bench trial, jeopardy attaches when the prosecution begins questioning its first witness. Serfass v. United States, 420 U.S. 377, 388 (1975) ("In a nonjury trial, jeopardy attaches when the court begins to hear evidence.")

But the Double Jeopardy clause is not absolute. It bars a retrial after a conviction or an acquittal, but it does not bar a retrial after most mistrials. United States v. Wilson, 420 U.S. 332, 344 (1975) ("[T]he Court has granted the Government the right to retry a defendant after a mistrial only where ‘there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.’")

The clearest exception to the mistrial exception, though, is that a new trial is not allowed where the prosecution acts in bad faith to provoke a mistrial. United States v. Dinitz, 424 U.S. 600, 611 (1976) ("The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.") This would prevent the perpetual retrial situation you discussed. I don't think the Speedy Trial clause would have that effect, as the time for a Speedy Trial typically resets after a mistrial is declared.

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For the purpose of the Double Jeopardy Clause in the Fifth Amendment to the United States Constitution, jeopardy ‘attaches’ after arraignment, when the defendant is “put to trial before the trier of the facts.” See Serfass v. United States, 420 U.S. 377 (1975), at 388:

As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of “attachment of jeopardy.” In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. In a nonjury trial, jeopardy attaches when the court begins to hear evidence. The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is “put to trial before the trier of the facts, whether the trier be a jury or a judge.”

That doesn’t mean that “a prosecutor can theoretically start a trial, abandon it, then try the person again, abandon it again, and so on indefinitely.” Even if the trial was repeatedly aborted before the jury was empaneled, the prosecutor’s conduct would eventually result in a violation of the Speedy Trial Clause of the Sixth Amendment.

  • Ok, if double jeopardy attaches at arraignment, then why can a person be tried again if there is a mistrial? – Cicero Jun 28 '18 at 14:28
  • "Attach" doesn't mean "precludes". "in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial", Illinois v. Somerville, 410 U.S. 458. – user6726 Jun 28 '18 at 20:23
  • Jeopardy does not attach at arraignment, but at some later point after arraignment. The defendant in Serfass had been arraigned, but jeopardy had not attached. My answer is a bit unclear on that point. – sjy Jun 28 '18 at 21:33

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