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In light of this comment and several responses to in the Q&A Is "My Cousin Vinny" dismissal actually possible? when exactly does jeopardy "attach" in a US criminal trial? That is, after what point in the proceedings would a future re-trial constitute double jeopardy?

Also, what exceptions, if any, are there, that is, situations in which a retrial could be permitted, even after jeopardy has attached?

Different users gave different answers as to when jeopardy attaches during the linked thread.

Please cite and quote reliable sources to support any answer.

1 Answer 1

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When the jury is sworn in

Jeopardy is said to "attach" when the jury has been sworn in, or if it is a non-jury trial, when the judge first starts to hear evidence after a witness has been sworn. At that point the trial has begun, and a new trial would normally constitute double jeopardy, which is not allowed under the Fifth Amendment to the US Federal Constitution. Jeopardy also attaches when when a court accepts a defendant's guilty plea unconditionally, and thereby ends the case (on acceptance of a plea, see Serfass v. United States, 420 U.S. 377, 388 (1975)).

Exceptions

There are several exceptions to the double jeopardy rule.

  • If the defendant requests or agrees to a dismissal, and agrees that it will be "without prejudice". This is unusual, as a defendant will not usually agree to a dismissal without prejudice, which specifically means that the case may be brought again if the state chooses to do so.
  • If the first trial and the second are under different sovereignties. For instance, if one trial is by a state and the other is by the Federal Government. Or if one trial is by state A, and the other by a different state B. Or if one trial was in a court of some nation other than the US. The Double Jeopardy rule only applies if both trials are under the same government.
  • A mistrial due to a hung jury (see United States v. Josef Perez, 22 U.S. (9 Wheat) 579 (1824)) or due to procedural error, misconduct (by a person other than the posecutor or judge), or a situation beyond the control of the court, such as: civil disorder; the illness or death of an attorney or a juror; Disqualification of a juror.
  • If the two trials are for legally different offenses, even thoguh both are based on the same underlying facts. See United States v. Felix, 503 U.S. 378 (1992), where the US Supreme Court held that:

    a[n]…offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes.

  • If a conviction was overturned on appeal and remanded for a new trial
  • If the defendant was never truly in jeopardy at the first trial. The classic case is that of Harry Aleman in which the judge in the fist trial was bribed to manipulate the proceedings so that Aleman would be acquitted. See Could double jeopardy protect a murderer who bribed the judge and jury to be declared not guilty? and this Wikipedia article as well as this other article. The case was Aleman v. Judges of the Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998). The Aleman case may be the only instance in which this rule has been applied.

See also When is a trial considered to have happened vis-a-vis double jeopardy?

Sources

Online Articles

Findlaw's page: "When Does Double Jeopardy Attach?" states:

Double jeopardy protections in the U.S. Constitution keep criminal defendants from being prosecuted twice for the same offense. But the protection does not “attach” itself to a case immediately when a defendant is charged, nor does it necessarily end upon conviction.

Once someone is charged with a crime, jeopardy attaches at the following stages:

  • When the jury is sworn;
  • When the first witness is sworn (for cases tried by a judge without a jury);
  • When the court first hears evidence in a juvenile proceeding; or
  • When the court accepts a plea agreement between a defendant and a prosecutor.

The Justia article "Protections Against Double Jeopardy for Criminal Defendants" states:

One of the core protections for criminal defendants is the double jeopardy rule provided by the Fifth Amendment to the U.S. Constitution. The short version of the rule is that you cannot be prosecuted more than once for the same crime. It prevents prosecution for the same crime after an acquittal or a conviction, and it also prevents imposing multiple punishments for the same crime. However, double jeopardy becomes much more complex in some circumstances.

The obvious application of double jeopardy is when law enforcement finds new evidence of the defendant’s guilt after the jury has already acquitted them. The prosecution cannot charge them again, even if the evidence shows that they probably are guilty. Another situation in which double jeopardy is clear is when a judge tries to sentence a defendant for a crime for which they have already served their sentence.

...

Double jeopardy does not attach until the court swears in the jury, or until the first witness starts to testify in a trial before a judge. Filing charges thus does not trigger the rule. Double jeopardy attaches in a bench trial as soon as the first trial witness is sworn in. ...

The federal and state governments can prosecute a defendant separately for the same conduct without violating the double jeopardy rule. Multiple states also can pursue separate prosecutions. Protection attaches only for prosecutions by the same sovereign. The dual sovereignty rule means that a defendant can face prosecution by both the state and the federal government, although often one will defer to the other. The federal government may have a right to prosecute a crime that did not cross state boundaries, occur on federal property, or violate a specific federal law, as long as it had some connection to interstate commerce or another area controlled by the federal government.

The Nolo article "The Prohibition Against Double Jeopardy" states:

The government must place a defendant "in jeopardy" for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn't cause jeopardy to "attach"—the proceedings must get to a further stage. Indeed, in many cases, the prosecution can drop charges through dismissal or nolle prosequi, then later refile them.

Generally, jeopardy attaches when the court swears in the jury. In a trial before a judge, jeopardy normally attaches after the first witness takes the oath and begins to testify.

Case Law

[Footnotes generally omitted]

Serfass (1975)

in Serfass v. United States, 420 U.S. 377 (1975) the US Supreme Court wrote

[Page 420 U. S. 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." See United States v. Jorn, supra, at 400 U. S. 480. In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. Downum v. United States, 372 U. S. 734 (1963); Illinois v. Somerville, 410 U. S. 458 (1973). In a nonjury trial, jeopardy attaches when the court begins to hear evidence. McCarthy v. Zerbst, 85 F.2d 640, 642 (CA10 1936). See Wade v. Hunter, 336 U. S. 684, 336 U. S. 688 (1949). 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." United States v. Jorn, supra, at 400 U. S. 479. See Kepner v. United States, 195 U. S. 100, 195 U. S. 128, 130-131 (1904); United States v. Macdonald, 207 U. S. 120, 207 U. S. 127 (1907); Bassing v. Cady, 208 U. S. 386, 208 U. S. 391-392 (1908); Collins v. Loisel, 262 U. S. 426, 262 U. S. 429 (1923).

... Petitioner's defense was raised before trial precisely because "trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining" its validity. United States v. Covington, 395 U. S. 57, 395 U. S. 60 (1969). See Fed.Rule Crim.Proc. 12(b)(1). [Footnote 13] His motion to postpone the trial was premised on the belief that "the expeditious administration of justice will be served best by considering the Motion [to dismiss the indictment] prior to trial." At no time during or following the hearing on petitioner's motion to dismiss the indictment did the District Court have jurisdiction to do more than grant or deny that motion, and neither before nor after the ruling did jeopardy attach.

...

[Pages 420 U. S. 390-392] It is true that we have disparaged "rigid, mechanical" rules in the interpretation of the Double Jeopardy Clause. Illinois v. Somerville, 410 U. S. 458, 410 U. S. 467 (1973). However, we also observed in that case that "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial." Ibid. Cf. United States v. Sisson, 399 U.S. at 399 U. S. 303. Implicit in the latter statement is the premise that the "constitutional policies underpinning the Fifth Amendment's guarantee" are not implicated before that point in the proceedings at which "jeopardy attaches." United States v. Jorn, 400 U.S. at 400 U. S. 480. As we have noted above, the Court has consistently adhered to the view that jeopardy does not attach until a defendant is "put to trial before the trier of the facts, whether the trier be a jury or a judge." Id. at 400 U. S. 479. This is by no means a mere technicality, nor is it a "rigid, mechanical" rule. It is, of course, like most legal rules, an attempt to impart content to an abstraction.

When a criminal prosecution is terminated prior to trial, an accused is often spared much of the expense, delay, strain, and embarrassment which attend a trial. See Green v. United States, 355 U.S. at 355 U. S. 187-188; United States v. Jorn, supra, at 400 U. S. 479. Although an accused may raise defenses or objections before trial which are "capable of determination without the trial of the general issue," Fed.Rule Crim.Proc. 12(b)(1), and although he must raise certain other defenses or objections before trial, Fed.Rule Crim.Proc. 12(b)(2), in neither case is he "subjected to the hazards of trial and possible conviction." Green v. United States, supra, at 355 U. S. 187. Moreover, in neither case would an appeal by the United States "allow the prosecutor to seek to persuade a second trier of fact of the defendant's guilt after having failed with the first." United States v. Wilson, ante, at 420 U. S. 352. See United States v. Jorn, supra, at 400 U. S. 484. Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier "having jurisdiction to try the question of the guilt or innocence of the accused." Kepner v. United States, 195 U.S. at 195 U. S. 133. See Price v. Georgia, 398 U.S. at 398 U. S. 329. Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy. [Emphasis added]

Jorn (1971)

In United States v. Jorn, 400 U.S. 470 (1971) the judge found that several prosecution witnesses had not been (or might not have been) sufficiently informed of their rights against self-incrimination nor warned of the dangers they might incur by testifying.

[Page 400 U. S. 473] The [trial] judge, expressing the view that any warnings that might have been given were probably inadequate, proceeded to discharge the jury; he then called all the taxpayers [potential witnesses] into court, and informed them of their constitutional rights and of the considerable dangers of unwittingly making damaging admissions in these factual circumstances. Finally, he aborted the trial so the witnesses could consult with attorneys.

When the case was brought up for retrial, the defendant argued that such a retrial would violate the Double Jeopardy clause.

the US Supreme Court wrote:

[Page 400 U. S. 474-5] The issue is whether appellee had been "put in jeopardy" by virtue of the impaneling of the jury in the first proceeding before the declaration of mistrial. In Sisson, supra, the opinion of the Court ... concluded, inter alia, that the "put in jeopardy" language applied whenever the jury had been impaneled, even if the defendant might constitutionally have been retried under the double jeopardy provisions of the Fifth Amendment. 399 U.S. at 399 U. S. 302-307. [Emphasis added]

...

[Page 400 U. S. 476-7] But it does not follow from the nonappealability of rulings which are essentially interlocutory insofar as they expressly contemplate resumption of the prosecution that Congress intended to foreclose governmental appeal from the sustaining of a later motion in bar on the trial judge's conclusion that constitutional double jeopardy policies require that the earlier mistrial ruling now be accorded the effect of barring reprosecution.

...

[Page 400 U. S. 479-481] The Fifth Amendment's prohibition against placing a defendant "twice in jeopardy" represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. [Footnote 8] A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. Both of these considerations are expressed in Green v. United States, 355 U. S. 184, 355 U. S. 187-188 (1957), where the Court noted that the policy underlying this provision

is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty.

These considerations have led this Court to conclude that a defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge. See Green v. United States, supra, at 355 U. S. 188; Wade v. Hunter, 336 U. S. 684, 336 U. S. 688 (1949). [Emphasis added]

But it is also true that a criminal trial is, even in the best of circumstances, a complicated affair to manage. The proceedings are dependent in the first instance on the most elementary sort of considerations, e.g., the health of the various witnesses, parties, attorneys, jurors, etc., all of whom must be prepared to arrive at the courthouse at set times. And when one adds the scheduling problems arising from case overloads, and the Sixth Amendment's requirement that the single trial to which the double jeopardy provision restricts the Government be conducted speedily, it becomes readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant's consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide. [Emphasis added] As the Court noted in Wade v. Hunter, supra, at 336 U. S. 689,

a defendant's valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public's interest in fair trials designed to end in just judgments."

Thus, the conclusion that "jeopardy attaches" when the trial commences expresses a judgment that the constitutional policies underpinning the Fifth Amendment's guarantee are implicated at that point in the proceedings. The question remains, however, in what circumstances retrial is to be precluded when the initial proceedings are aborted prior to verdict without the defendant's consent. [*Emphasis added]

In dealing with that question, this Court has, for the most part, explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will permit or preclude retrial. Thus, in United States v. Perez, 9 Wheat. 579 (1824), this Court held that a defendant in a capital case might be retried after the trial judge had, without the defendant's consent, discharged a jury that reported itself unable to agree.

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