Crist v. Cline Supplemental Briefs on Reargument

    The Supreme Court 
of the United States

Roger Crist, Warden
Versus

Merrel Cline and 
L.R. Bretx

Supplemental Briefs on Reargument

Law Reprints
Criminal Law Series
Volume 9, no. 6a 
1977/1978 Term



In The

Supreme Court of the United States
-----------------------------------0 ------------------------------ —

No. 764200

ROGER CRIST, as Warden of the Montana State 
Penitentiary, Deer Lodge, Montana, et al.,

Appellant,
vs.

MERREL CLINE and L. R. BRETZ,
Respondents.

- o -

BRIEF FOR THE APPELLANTS 
ON RE-ARGUMENT

■ o-

M ic h a e l  T. G beely  
Attorney General 
State of Montana

State Capitol 
Helena, Montana 59601

By R obert S. K eller

Special Assistant Attorney General
Counsel for Appellant



1

TABLE OF CONTENTS

Questions Presented .......... ..— ............. .......,..............  1

Summary of Argument:

1. Is the rule heretofore applied in the Federal
Courts—that jeopardy attaches in jury trials 
when the jury is sworn—constitutionally man­
dated! .......... ...... -............. ......................................  2

2. Should this Court hold that the Constitution does 
not require jeopardy to attach in any trial—state 
or federal, jury or non-jury—until the first wit­

Pages

ness is sworn!................. ..... ................. ............... ... 19

Conclusion ................. ..................................... ...... ..........  23

Ca s e s :

Com. v. Cook, (Pa.-1822) 6 Ser. L. & E, 577 ..............  9

Com. v. Wade, 17 Pick. 395 ...... ..................................... 14

Duncan v. Louisiana, 391 U.'S. 145 (1968)..................20,22

Ex Parte Lange, 18 Wall. 163, 85 IT. S. 872 (1873) ...  16

In Re Winship, 397 U. S. 358 (1969) ................. ......... .............20, 22

People v. Goodwin, (N. Y. -1820) 18 Johns. Eep. 188 ...7,13

People v. Olcott, (N. Y. -1801) 2 Johns. Cas. 301 ......  6, 8

Simmons v. U. S., 142 U. S, 968 (1891) .....................17,21

State v. Davis, 4 Blackf. 345 .............................. ...........  14

U. S. v. Bigelow, (1884) 3 Mackey 393, 14 D. C.
393 .....................-......... ........... ............. 2, 3,4, 5,17,19, 20



C ases—Continued:

U. S. v. Coolidge, (Cir. Ct., D. Mass.-1815) 2 Gall.
364, 25 Fed. Cas. 622 .. ....... .... ......... ..........................7,12

U.S. v. Gibert, (1834-Cir. Ct., D. Mass.) 250 Mn.
19, 25 Fed. Cas. 1287 .......... ............... ............... ............ .............3,13

U. S. v. Haskell, (Cir. Ct., E. D. Pa.-1823) 4 Wash.
C. C. 402, 2 Wheeler, Cr. Cas. 101, 26 Fed. Cas.
207 ....... .............. ................ ..... ................................. 11,13

U. S. v. Morris, (Cir. Ct. D. Mass.-1851) 1 Curt.
23, 9 West. Law J. 151, 26 Fed. Cas. 1323 .............. 15, 21

U. S. v. Perez, 9 Wheat. 579 (1824) .......3,11,12,13,17,19

U.S. v. Shoemaker, (Cir. Ct, D. I11.-1840) 2 Mc­
Lean 114, 27 Fed. Cas. 1067 .......... ..........................14,18

Wade v. Hunter, 336 U. S. 684 (1949) ...... .......... .........  15

Williams v. Florida, 399 U.S. 78 (1970)   .................  23

E n g l ish  C a s e s :

Conway & Lynch v. Beg, (Ireland) (1845) 7 Ir.
Law Bep. 149................................................................ 4, 6

Newton’s Case, (1849) 13 Q. B. 716 ............................  4

Beg. v. Charlesworth, (1861) 1 Best & Smith 460 ..... 4

Beg. v. Davison, 2 F. & F. 250 ........................   4

Beg. v. Winsor, (1866) 6 Best & Smith 143..................  4

Bex v. Kinloch, (1746) Foster C. L. 22 .......................  4, 6

Winsor v. Beg., (Q. B.-1866) 7 Best & Smith 490......4,17

ii

Pages



S t a t u t e sj

Act of 1846 .......................................................... ........... 16

Act of 1792 .......................................... ...........................  16

Grim. Appeals Act of 1907 .. ............................. ........... 20

T exts :

4 Blackstones Commentaries 335 ...... ........................... 8

4 Blackstones Commentaries 360 .................... .4, 5, 6,19, 20

1 Chi tty ’s Crim. Law 372 ...............................................  8

Ill

Pages



Supreme Court of the United States
-------------O----- -—------

In The

No. 76-1200

------------- o------------—

ROGER CRIST, as Warden of the Montana State 
Penitentiary, Deer Lodge, Montana, et al.,

Appellant,

vs.

MERREL CLINE and L. R. BRETZ,
Respondents.

■------------- o--------------

BRIEF FOR THE APPELLANTS 
ON RE-ARGUMENT

------------- o--------------

QUESTIONS PRESENTED

1. Is the rule heretofore applied in the federal courts 
—that jeopardy attaches in jury trials when the jury is 
sworn—-constitutionally mandated ?

2. Should this Court hold that the Constitution does 
not require jeopardy to attach in any trial state or fed- 
erl, jury or non-jury—until the first witness is sworn?

------------- o----------- -—

1



2

SUMMARY OF ARGUMENT

1. Is the rule heretofore applied in the 
Federal Courts—that jeopardy attaches in jury 
trials when the jury is sworn—constitutionally 
mandated?

The Appellants answer in the negative.

Before proceeding with the history of the double jeop­
ardy clause and an analysis of the point at which jeop­
ardy attaches in jury trials, we want to call to the Court’s 
attention the case of The United States v. Benjamin F. 
Bigelow, (1884) 3 Mackey 393, 14 D. C. 393, for there is 
not much that we can add to that opinion in answer to the 
first issue. It is exhaustive, on point, and the logic is 
compelling. Fourteen indictments were found against the 
defendant for embezzlement, to each of which he pleaded 
not guilty. Afterwards, at the defendant’s request, they 
were all consolidated and directed to be tried as one case. 
A jury was then empaneled and sworn, and the District 
Attorney opened the case to the jury, stating what he ex­
pected to prove in relation to each and all of the indict­
ments. After he had closed, and before any evidence was 
taken, the Trial Judge, on his own motion and against the 
protest of defendant, rescinded the order consolidating the 
indictments, discharged the jury and directed the District 
Attorney to select one of the indictments for trial. This 
was done, and the same jury re-sworn. Whereupon the 
defendant pleaded autrefois acquit which was overruled 
on demurrer and the trial proceeded with, and a verdict of 
guilty found. The Supreme Court of the District of Co­
lumbia held that this discharge of the jury was not equiva­
lent to an acquital, and was no defense to the second trial.

2



3

In essence, the Bigelow case, id., traced the origin of 
the two rules of the common law that bring us to our pres­
ent position, i.e., “No person should be subject, for the 
same offense, to be twice put in jeopardy of life or limb,” 
and, “A  jury sworn and charged in case of life or member, 
cannot be discharged by the court or any other, but they 
ought to give a verdict.”

U.S. v. Gibert, et al, (1834-Cir. Ct., D. Mass.), 2 
Sumn, 19, 25 Fed. Cas. 1287, commencing at page 1294, 
fairly well gives the history of the maxim of the common 
law that is now the double jeopardy clause of the Fifth 
Amendment. The pleas of autre fois. acquit and autre fois 
convict or attaint required a sufficient indictment and a 
jury verdict of acquital or conviction. Anything short of 
that was not considered to be jeopardy. Many of the cases 
cited hereafter will be in the period prior to and including 
U.S. v. Peres, (S. Ct.-1824) 9 Wheat. 579, and all of them 
dealing with the authority of the court to discharge a jury 
prior to verdict. Most of them will contain a terse com­
ment such as is contained in Perez, “ The prisoner has not 
been convicted or acquitted, and may again be put upon 
his defense.” This simply means there is no double jeop­
ardy, for there was no jury verdict, and the rest of the 
opinions will deal with the authority of the court to dis­
charge a jury prior to verdict,

U. S. v. Perez, supra, was a hung jury, and brought 
into question the right of the court to discharge a jury 
without verdict. That particular issue was the subject 
matter of many cases in England, both before and after 
the American constitution, as well as a number of Ameri­
can cases before and after Perez. The reason for the liti­
gation is the second common law rule referred to above,

3



4

and as stated in Winsor against the Queen, (in error), 
(Q. B.-1866) 7 Best & Smith Rep. 490, at page 498,

“ We consider that the doubts which have caused 
this repeated litigation originate in the unlimited terms 
used by Sir Edward Coke in stating what he 
considered to be the rule of the common law relating 
to the discharge of juries before verdict, viz., a ‘jury 
sworn and charged in cases of life or member, cannot 
be discharged by the Court or any other, but they ought 
to give a verdict;’ Co. Litt. 227 b. This rule, if taken 
literally, seems to command the confinement of the 
jury till death if they do not agree, and to avoid any 
such consequence an exception was introduced in prac­
tice which Blackstone has described by the words 
"unless in cases of evident necessity;’ 4 Bl. Comm. 
360(f).” (The “ f ” is a footnote which reads, “ This 
exception does not appear in the earlier editions”).

The English have wrestled with this rule espoused by 
Sir Edward Coke in a series of cases, most noteworthy of 
which are Rex v. Kinloch, (1746) Foster C. L. 22 ; Conway 
and Lynch v. the Queen, (in error), (1845) 7 Ir. Law Rep. 
149; Newton’s Case, (1849) 13 Q. B. 716 ; Reg v. Davison, 
2 F. & F. 250; Reg. v. Chartssworth, (1861) 1 Best & Smith 
460; and Reg. v. Winsor, (1866), 6 Best & Smith 143. 
(This is the Queen’s Bench decision that was then ap­
pealed to the Exchequer Chamber as cited above, Winsor 
against the Queen, supra).

The Bigelow case, supra, at page 418, describes this 
rule of Lord Coke as,

“ an effort of the judges to lay down a guide for 
judicial discretion; that it was nothing more than a 
rule of practice, subject to judicial control, and in its 
nature liable to change in order to meet exigencies as 
they should arise.”

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5

Bigelow cites Justice Foster in Kinloch’s case, Foster 
C.C., 16-21, (1745),

“ ‘They agreed,’ says Foster, ‘that, admitting the 
rule laid down by Coke to be a good general rule, yet 
it cannot be universally binding, nor is it easy to lay­
down any rule that will be so.’ Foster delivered a 
concurring opinion, and said: ‘The general question
is a point of great difficulty and of weighty import­
ance, and I take it to be one of those questions which 
are not capable of being determined by any general 
rule that hath hitherto been laid down, or possibly 
ever may be. For I think it is impossible to fix upon 
any single rule which can be made, to govern the infi­
nite variety of cases which may come under this gener­
al question, without manifest absurdity, and in some in­
stances without the highest injustice.’ Such language 
as this could not have been used, if it had been under­
stood that the rule on the subject of discharge stood 
on the footing of a rule of the common law, or that it 
was fixed and settled even as a rule of practice.”

The case goes on to cite the change in the rule by 
Blackstone, at page 416,

“ ‘When the evidence on both sides is closed, and 
indeed when any evidence hath been given, the jury 
cannot be discharged, unless in cases of evident neces­
sity, till they have given in their verdict.’ 4 Black., 
360.” And, at page 417, “ Cockburn, C. J., said in 
Charlesworth’s case, 1 Best & S., 498: ‘I apprehend 
that in no part of our procedure has the practice of 
the courts more fluctuated than in relation to the prac­
tice of the discharge of the jury in criminal trials;’ 
and in Winsor’s case, 1 Q. B. 301, he said: ‘. . . we 
are dealing with the matter of practice, which has 
fluctuated at various times, and which, even at the 
present day, may perhaps not be considered as set­
tled.’ ”

5



6

And then goes on to cite from two judges from Conway 
and Lynch v. the Queen, 7 Ir. L. R. 161, and concludes that 
both judges treated this rule of law as having been a rule 
of practice, at page 418.

Whether this be treated as a rule of the common law, 
a rule of practice, or a rule of procedure, at the time of 
our constitution, it clearly was not a rule of the common 
law that forbade double jeopardy.

The early American cases were in much the same vein. 
People against Olcott, (N. Y.-1801) 2 Johns. Cas. 301 was 
a misdemeanor case resulting in a hung jury. The defend­
ant asked for his discharge on the grounds that being once 
put on his trial, and the jury not being able to agree on 
a perfect verdict, and being discharged by the court against 
the consent of the prisoner, he cannot be again brought to 
trial. Kent. J. examined the rule of Lord Coke, with the 
amendment of Mr. Justice Blackstone, the Kinloch’s case, 
etc., and found, at page 305,

“ The instances in which the court has exercised 
its discretion in discharging the jury, have multiplied 
since the time of Foster, and have now become very 
considerable in point of number and importance. . . . 
The general rule, as laid down by Coke, and most of 
the cases on the subject relate to trials for capital 
offenses, and even there we have seen how far the 
rule has been justly questioned, if not wholly done 
away; and the many exceptions which are conceded 
to exist against its universality.”

He goes on to make the distinction in a case of misde­
meanor only, and finds the power in the court to discharge 
a jury, in the case of a misdemeanor, to be restricted only 
to the extent of denying the prosecutor the liberty of hav­
ing a juror withdrawn, “ because he happens, after enter-

6



mg into his testimony, to find himself unprepared through 
his own fault; . . . ” He goes on to say, at page 308,

“ There is no alternative, either the court must 
determine when it is requisite to discharge, or the rule 
must be inflexible, that after the jury is once sworn 
and .charged, no other jury can, in any event, be sworn 
and charged in the same cause. The moment cases of 
necessity are admitted to form exceptions, that mo­
ment a door is opened to the discretion of the court, 
to judge of that necessity, and to determine what com­
bination of circumstances will create one.”

That statement fairly well sums up the position of the 
common law practice, rule, or whatever, for the American 
cases through the middle of the century, with little, or no 
reference to the Fifth Amendment.

Justice Storey found similarly in U. 8. v. Coolidge, 
(Cir. Ct., D. Mass.-1815), 2 Gall. 364, 25 Fed. Cas. 622, and 
held that the discretion exists in all cases, capital and mis­
demeanor, but is to be exercised only in very extraordi­
nary and striking circumstances.

People against Goodwin, (N. Y.-1820), 18 Johns. Eep. 
188, was a hung jury, involving a felony. The defendant 
moved for his discharge, and relied, principally, on the 
double jeopardy clause. Spencer, Ch. J., after analyzing 
the clause, stated, at page 202,

“The question then recurs, what is the meaning 
of the rule that no person shall be subject, for the same 
offense, to be twice put in jeopardy of life or limb'? 
Upon the fullest consideration which I have been able 
to bestow on the subject, I am satisfied that it means 
no more than th is: That no man shall be twice tried 
for the same offense. . . . The test by which to decide 
whether a person has been once tried, is perfectly fa­
miliar to every lawyer—it can only be by a plea of

7

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8

autrefois acquit, or a plea of autrefois convict. The 
plea of a formal acquittal, Judge Blackstone says, (4 
Com. 335) is grounded on this universal maxim of the 
common law of England, that no man is to he brought 
into jeopardy of his life more than once for the same 
offense; and hence (he says) it is allowed as a conse­
quence, that where a man is once fairly found not 
guilty upon an indictment, or other prosecution, before 
any court having competent jurisdiction of the offense, 
he may plead such acquittal in bar of any subsequent 
accusation for the same crime. The plea of a  former 
conviction depends on the same principal, that no man 
ought twice to be brought in danger for the same crime, 
to render the plea of a former acquital, a bar, it must 
be a legal acquittal, by judgment, upon a trial for 
substantially the same offense, and the verdict of a 
petit jury. (1 Chi tty’s Crim. Law, 372.) In the pres­
ent case, it is not pretended that the prisoner has been 
acquitted, unless the discharge of the jury, without 
having agreed upon their verdict, and without the pris­
oner’s consent, shall amount, in judgment of law, to 
an acquittal. This brings us to the question, whether 
the Court of Sessions could discharge the jury, under 
the circumstances of this ease. If they could not, then 
I should be of the opinion, that, although there could 
be no technical plea of autrefois acquit, the same mat­
ter might be moved in arrest of judgment; and, if so, 
I can see no objection to the discussion of the question 
in its present shape, on a motion to discharge the 
prisoner.”
After commenting upon, and approving, People against 

Olcott, supra, and commenting upon the number of cases 
that had come up since that time involving the same ques­
tion, both in England and in the United States, he finds 
that the court does have the power to discharge the jury 
in cases of extreme and absolute necessity, and that it may 
be exercised without operating as an acquittal of the de­
fendant. Then he addresses the constitutional issue, at 
page 206,

8



9

“ Much stress has been placed on the fact, that the 
defendant was in jeopardy during the time the jury 
was deliberating. It is true, that his situation was 
critical, and there was, as regards him, danger, that 
the jury might agree on a verdict of guilty; but, in a 
legal sense, he was not in jeopardy, so that it would 
exonerate him from another trial. He has not been 
tried for the offense imputed to him; to render the 
trial complete and perfect, there should have been a 
verdict, either for or against him. A literal observ­
ance of the constitutional provision would extend to 
and embrace those cases where, by the visitation of 
God, one of the jurors should either die, or become 
utterly unable to proceed in the trial. It would extend, 
also, to a case where the defendant himself should be 
seized with a fit, and become incapable of attending 
to his defense; and it would extend to a case where 
the jury were necessarily discharged in consequence 
of the termination of the powers of the court. In a 
legal sense, therefore, a defendant is not once put in 
jeopardy, until the verdict of the jury is rendered for 
or against him; and if for or against him, he can never 
be drawn in question again for the same offense.”
The Commonwealth against Cook and other, (Pa.-1822) 

6 Serg. & E. 577, was a capital ease with three defendants; 
the jury announced it had arrived at a verdict on two of 
the defendants, but could not agree as to the third. The 
trial court refused to take any verdict, and discharged the 
jury, remanding the defendants for a new trial. The Su­
preme Court of Pennsylvania acquitted the defendants, on 
the basis of Lord Coke’s rule, subject to the exceptions of 
actual physical necessity, but never on the grounds that 
they could not agree upon a verdict. This case has im­
portance in terms of reflecting the legal opinion of that 
day, for various reasons. There is not much question, in 
the actual fact situation, that the eourt was concerned, in

9



10

a capital case, that a verdict had been reached on two of 
the three defendants, without knowing which ones they 
were, but that all three had been remanded for a new trial. 
But we also see, for the first time, the “ valued right” 
concept starting to appear, at page 586,

“ But where the indictment is good, and the jury 
are charged with the prisoner, his life is undoubtedly 
in jeopardy during their deliberation. If they are di­
vided in opinion, and especially if there should be a 
great majority in favor of the prisoner, he has gained 
an advantage of which he is deprived if the court dis­
charges the jury. I grant that in ease of necessity 
they may be discharged; but if there be anything short 
of absolute necessity, how can the court, without vio­
lating the constitution, take from the prisoner his right 
to have the jury kept together until they have agreed, 
so that he may not be put in jeopardy a second time!”

(The “ constitution” referred to was the Pennsylvania 
constitution, but the double jeopardy clause is identical to 
that of the federal constitution). But after referring to 
the constitution, the Court went on to relate a Pennsyl­
vania statute of 1806 in which the court was given author­
ity to dismiss a jury in a civil case, from which,

“ Two inferences arise from this act: 1st. That it 
was not supposed that the court had power to dis­
charge the jury, at their discretion, even in civil cases. 
2nd. That it was not thought expedient to give them 
that power in criminal cases.” At page 586.

The inference is that, notwithstanding the reference to 
the constitution, this is not a constitutional right, for the 
legislature could not then change it. And if there be any 
question as to whether this inference be properly drawn, 
the court, at page 597, stated,

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11

“ These are some of the reasons which induced 
me to doubt whether any good would arise from a 
change in the law, if the court had power to change 
it, which it certainly has not. That is a power which 
belongs to the legislature.”

The Pennsylvania case relied upon a strict interpreta­
tion of Lord Coke’s rule, and not upon the double jeopardy 
clause, but there is an unmistakable co-mingling starting 
to occur.

U.S. v. Haskell, et al., (Cir. Ct., E. D. Pa.-1823) 4 
Wash. €. C. 402, 2 Wheeler, Or. Cas. 101, 26 Fed. Gas. 207, 
was a capital case, and after returning their verdict, and 
While being polled, one of the jurors apparently had a fit. 
A minute entry was made,

“ The jury having been kept together three days, 
and more than 24 hours without refreshments, and 
there being no prospect of their agreeing, and the 
court being satisfied of the insanity of one of the jury 
men, discharges the jury without the consent of the 
counsel for the prisoner.”

A special plea was tendered to the court, setting forth 
all of the circumstances, and concluding that the dis­
charge of the jury without the consent of the defendants 
was equivalent to an acquittal, and praying judgment of 
the court if they ought again to be put on their trial, and 
in jeopardy of their lives. Justice Washington, who sat 
on the Peres case the following year (V . S. v. Perez, (1824) 
9 Wheat. 579), held,

“ Whatever name may be given to this plea, one 
thing is clear, that it is not a plea of autrefois acquit; 
nor could the counsel have ventured such a plea, 
because it must have stated a verdict of acquittal and 
the judgment of the court thereon; . . . The plea in­

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12

deed does not profess to be a plea of autrefois acquit, 
for it merely alleges the discharge of the jury as 
equivalent in law to an acquittal,”
Justice Washington went on to state that the author­

ity of the court to discharge the jury rests in the sound 
discretion of the court. “ It can rest nowhere else.” , at 
page 211.

“ But it is contended, that although the court may 
discharge in cases of misdemeanour, they have no such 
authority in capital cases; and the Fifth Amendment 
to the Constitution of the United States is relied upon 
as justifying the distinction. We think otherwise; 
because we are clearly of opinion, that the jeopardy 
spoken of in this article can be interpreted to1 mean 
nothing short of the acquittal or conviction of the 
prisoner, and the judgment of the court thereupon. . . . 
We are in short of opinion, that the moment it is 
admitted that in cases of necessity the court is au­
thorized to discharge the jury, the whole argument 
for applying this article of the constitution to a dis­
charge of a jury before conviction and judgment is 
abandoned, because the exception of necessity is not 
to be found in any part of the constitution; . . .  We 
admit the exception, but we do it because that article 
does not apply to a jeopardy short of conviction. . . . 
By reprobating this plea, we do not deny to a prisoner 
the opportunity to avail himself of the improper dis­
charge of the jury as equivalent to an acquittal, since 
he may have all the benefit of the error, if committed, 
by a motion for his discharge, or upon a motion in 
arrest of judgment.”
And then came Peres, supra. This was a hung jury, 

and came to the Supreme Court from the Circuit Court 
for the Southern District of New York, upon a certificate 
of division and the opinions of the judges of that court. 
After reading the opinion of Justice Storey in U.8. v.

12



.13

Coolidge, supra, and Justice Washington in U. S. v. Ha- 
shell, supra, the opinion comes as no surprise.

“ We are of opinion that the facts constitute no 
legal bar to a future trial. The prisoner has not been 
convicted or acquitted, and may again be put upon his 
defense.” at page 580.

There is not the slightest reference to the Constitu­
tion of the United States, other than the terse comment 
that the prisoner has not been convicted or acquitted.

United States v. Gibert, et al, (Cir. Ct. D. Mass.-1834) 
2 Sumn. 19, 25 Fed. Cas. 1287, has to be referred to in the 
chain of cases that lend assistance in determining this 
first issue, but holding of the court has never been fol­
lowed. There, Justice Storey, the author of Perez, supra, 
held that the Fifth Amendment quarantee prevented a 
new trial of a defendant convicted of a capital offense, and 
based his conclusion upon the same rationale as if a de­
fendant had been lawfully acquitted by jury verdict. He 
makes it clear that the double jeopardy defense, on a 
constitutional basis, applies only after a jury verdict, 
although he does state that Pennsylvania and North 
Carolina,

“ go farther, and deem the case within the prohibition 
of the constitution, if the party is once put upon trial 
before a jury, and the jury is discharged without 
giving a verdict, except in cases of extreme neces­
sity.” at page 1300.

He does go on to hold that the Supreme Court of the 
United States in the case of U. S. v. Perez, supra, adopted 
the doctrine of the Supreme Court of New York, as set 
forth in People v. Goodwin, supra, restating, “ The pris­

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14

oner had not been convicted or acquitted, and therefore 
might again be put upon his defense. ’ ’ at page 1300.

United States v. Shoemaker, (Cir. Cl, I). I11.-1840), 2 
McLean 114, 27 Fed. Gas. 1067, was a felony case, non­
capital, where the jury was empaneled, witnesses sworn, 
and the prosecuting attorney abandoned the prosecution, 
and entered a nolle prosequi on the indictment. The issues 
set forth by the court were Whether or not the prosecuting 
attorney had a right to enter a nolle prosequi at that time, 
and secondly, does such an abandonment amount to an 
acquittal of the defendant! Justice McLean specifically 
held that the Fifth Amendment was not involved because 
the penalty for the offense did not subject the defendant 
to the loss of either life or limb, id., 1068. “ . . . but the 
rights of the defendant are equally guarded by established 
principles.” at page 1068, and accordingly, he determined 
the disposition of the case, in favor of acquittal, on com­
mon law principles. He stated later, “ Here is no verdict 
of acquittal, and, consequently, no judgment on the ver­
dict. The plea of a formal acquittal is not, therefore, 
technically sustained.”

However, he did find that the abandonment by the 
prosecution, after the jury was sworn, entitled the de­
fendant to a verdict, which in turn entitled the defendant 
to a judgment which would be a bar to the new indictment. 
He cited Com. v. Wade, 17 Pick. 395, and State v. Davis, 4 
Blackf. 345, where the courts decided that, where the jury 
was sworn, and some evidence heard, the prosecuting 
attorney had no right to enter a nolle prosequi, and that 
the defendant was entitled to a verdict, id., 1069. In 
essence, he held, under common law principles, that when

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15

the prosecution abandons the case, after a jury is sworn, 
a judgment of acquittal should be given to the defendant.

This would he true today, apart from the Fifth 
Amendment, and, in fact, if the prosecution abandoned the 
case, or refused to proceed, on the day of trial, before a 
jury was empaneled, much less sworn, there would be a 
dismissal with prejudice.

This case, however, is probably the origin of the ‘1 de­
fendant’s valued right to have his trial completed by a 
particular tribunal” , Wade v. Hunter, (1949) 336 XL S. 
684, when the court stated, at page 1069,

“ And a jury having been sworn to try his case, 
he has a right to their verdict, unless some inevitable 
occurrence shall interpose and prevent the rendition 
of a verdict.”
This is not the “ origin” of that rule, but it is the 

first that it is so enunciated in the federal cases. As has 
been shown, some form of this rule had been expressed 
from the time of Lord Coke. The significance of this par­
ticular case, and that rule, is this case was decided on the 
basis that the Fifth Amendment double jeopardy clause 
did not pertain, i. e., this right to a verdict after a jury 
has been sworn is not a part of the double jeopardy clause.

U.S. v. Morris, (Cir. Ct., D. Mass.-1851) 1 Curt. 23, 9 
West. Law J. 151, 26 Fed. Cas. 1323, was a misdemeanor 
case, and after the jury had been sworn and witnesses 
examined in behalf of the prosecution, the prosecuting 
attorney proved bias of one of the jurors, and the court 
ordered the juror to be withdrawn, and the case to be 
continued to the next term of court, without the consent 
of the defendant. The Fifth Amendment was not even

15



16

cited, probably because it was a misdemeanor case. The 
significance of the case is that the court, in upholding the 
right of the District Judge to break off the case, cited 
the authority given under the Act of 1846, wherein the 
statute granted the District Court authority to remit ques­
tions to the Circuit Court. He went on to find that this 
right is there, even if it means breaking off a trial. At 
page 1325,

“ And, taking a legal view of the subject, it is 
dear that no argument can be drawn from the amount 
of discretionary authority thus conferred on the judge, 
because it is in harmony with other provisions of law, 
and of this very statute, and of the same nature as 
the powers already possessed by courts of the United 
States. By the Act of 1792 (Chapter 66) it is pro­
vided, that when the judges of the Circuit Court are 
divided in opinion, the question may be certified to 
the Supreme Court for decision and the trial is to 
proceed or to be broken off, as the court shall deter­
mine. ’ ’
The significance of the case, and particularly of the 

Statute of 1792, is that there was no feeling then that 
jeopardy attached under the constitution until there was 
a verdict of the jury, within the meaning of the constitu­
tion.

Ex parte Lange, (1873) 18 Wall. 163, 85 U. S. 872, was 
a case wherein there was a double punishment for the 
same verdict. The trial court had sentenced the defendant 
to both a fine and imprisonment, contrary to the provi­
sions of a statute that provided for a fine or imprison­
ment. Defendant had paid the fine and served five days 
of the imprisonment, before having the sentence set aside 
on a Writ of Habeas Corpus. The trial judge then va­

16



17

cated the sentence, and sentenced the defendant to the 
maximum time of imprisonment. The Supreme Court held 
it was a double punishment upon the same verdict, and 
contrary to the double jeopardy clause. The issue before 
this court now was not involved in that decision, but as 
was pointed out in TJ. S. v. Bigelow, at pages 409-411, the 
comment of the justices in that case made it clear that 
they were still construing the double jeopardy clause of 
the Fifth Amendment in the same manner as it was in 
Perez, supra, i. e., there must be a verdict by the jury 
before the double jeopardy clause is implicated.

However, United States v. Bigelow, in 1884, recog­
nizes, at page 396, that some courts have determined that 
the first jeopardy, under the Fifth Amendment double 
jeopardy clause, begins when the jury is sworn. In the 
argument before this court in Simmons v. United States, 
(1891) 142 U. S. 968, several state cases are cited in sup­
port of the proposition,

“ Jeopardy attaches the moment the jury is sworn, 
and if the jury thereafter be discharged without a 
verdict where no legal ground of discharge is shown, 
the effect will be precisely the same as if a verdict of 
acquittal had been rendered.”

i. e., the blending of the two rules is beginning to occur, 
and the decision in Simmons v. United, States, id., did 
nothing to stop the blending. The trial judge had dis­
charged the jury after they had been sworn, and witnesses 
had testified, on the grounds that the jury had been 
tainted. The court, after citing the authority of the trial 
judge to do this from U. S. v. Perez, supra, and Wins or v. 
Reg, L. R. 1 Q. B. 289, 390, 6 Best & S. 143, and 7 Best & 
S. 490, held,

17



18

“ The judge having come to that conclusion, it 
was clearly within his authority to order the jury to 
be discharged, and to put the defendant on trial by 
another jury; and the defendant was not thereby twice 
put in jeopardy, within the meaning of the Fifth 
Amendment to the Constitution of the United States.” 
at page 971.

The right of the trial judge to discharge the jury 
under the circumstances would have been present whether 
jeopardy attached when the jury was sworn under the 
Fifth Amendment, or whether the common law rule of 
practice was being followed as to when a juiy may be 
discharged. The quoted portion of the decision appears 
to imply that the judge had a right to do this and the 
right was an exception to the Fifth Amendment clause, 
i. e., that jeopardy had attached, and this was an excep­
tion. It is interesting to note that defense counsel in this 
case took an exception to the discharge of the jury, moved 
for an acquittal because of the discharge of the jury, and 
excepted to the denial of his motion (id., 969), i. e., to fall 
within the rationale of U. S. v. Shoemaker, supra, and 
People v. Goodwin, supra, where an improper discharge 
is equivalent to an acquittal, and the acquittal can then be 
pleaded on the Fifth Amendment as a bar. This is not 
the same thing as having jeopardy attach when the jury is 
sworn, but the practical consequence is the same. And 
the practical consequence is that jeopardy attached when 
the jury was sworn, subject to exceptions, which puts us 
to the present date.

But to go back to the issue here, there was certainly 
no constitutional mandate, at the time of the constitution, 
that jeopardy attaches in jury trials when the jury is

18



19

sworn, and there was no such implication until after Perez, 
supra.

2. Should this Court hold that the Constitu­
tion does not require jeopardy to attach in any 
trial—state or federal, jury or non-jury—until 
the first witness is sworn?
It is the position of the Appellant that this Court 

should hold that the Constitution does not require jeop­
ardy to attach in any trial—state or federal, jury or non­
jury— before the first witness is sworn.

As we argued to the Court at the first hearing, there 
can be no “ jeopardy” of the defendant in any criminal 
trial, jury or non-jury, until evidence has been presented 
by the prosecution that would convict; that if, after the 
jury were sworn, the prosecution rested, a judge would 
have to direct a verdict of acquittal. And, we argued, that 
if after the first witness were sworn, the prosecution 
rested, the judge would still have to direct an acquittal. 
In neither case would the defendant have been in “ jeop­
ardy” , as a matter of law. This position is stated more 
adequately in U. S. v. Bigelow, supra, pages 397-401. The 
Bigelow case quotes from Blackstone,

“ ‘When the evidence on both sides is closed, in­
deed where any evidence hath been given, the jury 
cannot be discharged (unless in cases of evident neces­
sity) till they have given in their verdict. ’ 4 Bl., 360.” 
(Emphasis added.)
[Our library does not have the edition of Blackstone 

that contains this quote, and this is the only place that we 
have seen this quote where it contains the middle clause, 
“ indeed where any evidence hath been given”. Certainly 
that language is significant, if the quote is correct.]

19



20

In answering the first issue, above, we are satisfied 
that at the time of the constitution, there was no jeopardy 
until after a verdict by the jury. We are also satisfied 
that the present statement of the law is that jeopardy at­
taches when a jury is sworn, and that, at least in the 
federal system, this has been the construction of the Fifth 
Amendment since the Criminal Appeals Act of 1907, (Act 
of March 2, 1907, c. 2564, 34 Stat. L. 1246), and that a con­
siderable number of cases have labored at a constitutional 
definition of “ manifest necessity” .

“Such adherence does ‘reflect a profound judg­
ment about the way in wdiich law should be enforced 
and justice administered’ Duncan v. Louisiana, 391 
II. S. 145, 155 (1968) ” , In Re Winship, 397 U. S. 358, 
362, (1969).
It seems clear now that there was a generally accepted 

rule at the time of the constitution that juries could not 
be discharged, both civil and criminal, and notwithstand­
ing the varying exceptions to the rule, the varying concepts 
of the rule, and the arguments over the origin of the rule, 
there was a rule of some sort at that time, or there would 
have been no cases arising over the premature discharge 
of the juries by the judge. But no reason was given, even 
then, for such a rule, other than the reason for having 
juries in the first place, i.e., the Magna Carta, which arose 
out of fear of the King, and the King’s judges. The jury 
was the only thing that stood in the way of the citizen and 
potential injustice. We can read the rule of Lord Coke, 
but we read no explanation for it. We read the rule of 
Justice Blackstone as set forth in U. S. v. Bigelow, supra, 
at pages 399 and 416, and that, at least, makes better sense, 
with the reasons apparent on their face, but the rule was 
apparently not followed, for all of the early litigated cases

20



21

involved the discharge of a jury after it had been sworn, 
and not after all of the evidence on both sides is closed, 
much less when any evidence had been given.

It puts us in the position today of finding that there 
is either no reason for the rule, or if there were a reason, 
it no longer exists, at least not at the point of the swear­
ing of the jury.

The “ valued right” concept has no application until 
that particular tribunal has heard some evidence. There 
can be nothing prior to that point, in law, that makes that 
particular tribunal any different than any other jury. As 
was stated in U. S. v. Morris, 1 Curt, 23, 37, 26 Fed. Cas. 
1323, 1328 (1851), and cited with approval in Simmons v. 
United States, 142 U. S. 968, 971 (1891),

“ The truth is, that it is an entire mistake to con­
found this discretionary authority of the court, to 
protect one part of the tribunal from corruption or 
prejudice, with the right of challenge allowed to a 
party. And it is, at least, equally a mistake to sup­
pose that, in a court of justice, either party can have 
a vested right to a corrupt or prejudiced juror, who is 
not fit to sit in judgment in the case.”

And that should apply to a juror who is just a little bit 
prejudiced. I t may well be that a defendant feels more 
comfortable with a particular jury, after the selection, and 
before evidence is heard, but this is no vested right, nor 
any constitutionally protected right. The right that he has 
to a particular tribunal is one that has heard his case, and 
where this right has been expressed is where juries have 
been undecided, hung, and then we can appreciate that de­
fendant’s interest, or “ right” to that particular tribunal.

In short, we have no difficulty in answering the sec­
ond issue of this court in the affirmative, and the only

21



22

reason for suggesting “ before” instead of “ until” , is that 
we can find no rationale for attaching jeopardy any sooner 
than a witness is sworn, and there may well be sound 
argument for jeopardy attaching later. That point may 
well not have to be established at this time.

The Appellees have conceded that under the common 
law, jeopardy did not attach until a verdict was rendered, 
Brief of Appellee Cline, page 7, Brief of Appellee Bretz, 
page 4. But, urges Appellee Cline, “ American jurisdic­
tions have greatly expanded the scope of the common law 
doctrine of double jeopardy,” id., at page 6. And this may 
well be argued, in the light of In  Be Winship, supra. If 
jeopardy does not attach until a verdict is given, then all 
of the concern over the exceptions based upon manifest 
necessity become a rule of practice, or an act of the various 
legislatures, but not constitutionally binding upon all of 
the states. That is a consequence, not a reason, but it has 
to be a matter of concern, and, 4 4 fundamental in the context 
of the criminal processes maintained by the American 
states.” Duncan v. Louisiana, 391 U. S. 145, 149, n. 14.

The rule of Lord Coke, with the “ evident necessity” 
exception of Blackstone, and the concomitant inference 
that jeopardy attaches when the jury is sworn is what con­
fronts us, whether it arose by an expanded scope of the 
double jeopardy clause or whether it was a part of the 
double jeopardy clause at the time of the constitution.

“The question before us is whether this accidental 
feature of the jury has been immutably codified into 
our constitution. . . . Noticeably absent was any dis­
cussion of the essential step in the argument: namely, 
that every feature of the jury as it existed at common 
law—whether incidental or essential to that institution 
—was necessarily included in the constitution when­

22



23

ever that document referred to a ‘jury’,’’ Williams 
v. Florida, 399 U. S. 78, 90, 91 (1970).

The same may well be said for the rule that jeopardy 
attaches when the jury is sworn, as an incident of Lord 
Coke’s rule, as modified. We don’t find every feature of 
that rule to be necessarily included in the double jeopardy 
clause, assuming, arguendo, that it was or is in the clause.

------------- o--------------

CONCLUSION

In conclusion, we find no basis for the rule that jeop­
ardy attaches in jury trials when the jury is sworn as 
distinguished from when evidence is given, much less a 
constitutional mandate, and we urge that this Court hold 
that the constitution does not require jeopardy to attach 
in any trial—state or federal, jury or non-jury—before the 
first witness is sworn.

Respectfully submitted this 30th day of December, 
1977.

M ic h a e l  T. Greely
Attorney General of Montana

By R obert S. K eller
Special Assistant Attorney General

Attorneys for the Appellant

23



Supreme Court of tfjeEmteb states
OCTOBER TERM, 1977

IN THE

No. 76-1200

ROGER CRIST, as Warden of the Montana State 
Penitentiary, Deer Lodge, Montana, et al.,

Appellants,
v.

MERREL CLINE and L.R. BRETZ,
Appellees.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR APPELLEE MERREL CLINE 
ON RE-ARGUMENT

W. WILLIAM LEAPHART, ESQ. 
The Leaphart Law Firm 
1 No. Last Chance Gulch, 
Suite 6
Helena, Montana 59601

Court-appointed Counsel for 
Appellee Cline

25



(i)

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ............................     1
STATEMENT OF CASE.....................................................  2

SUMMARY OF ARGUMENT ..............................................   2

HISTORICAL PERSPECTIVE .......................................................4
ARGUMENT ...................................................................   5

I. THE RULE THAT JEOPARDY ATTACHES 
UPON THE SWEARING OF THE JURY IS 
CONSTITUTIONALLY MANDATED ............................. 5
A. Double Jeopardy Protection must be 

governed, in both Federal and State
Courts, by Constitutional “Standards” . . . . . . . .  5

B. The Federal Courts have treated the
present rule concerning the attaching of 
jeopardy as one of Constitutional S ta tu re ...................9

C. The Federal Rule is Constitutionally
Mandated ....................................................................... 12

D. Substantive Rule vs. Historical Accident .................13

E. The Policies Underpinning the “Attach­
ment of Jeopardy Rule” ............................................. 15

II. SHOULD THIS COURT HOLD THAT THE 
CONSTITUTION DOES NOT REQUIRE 
JEOPARDY TO ATTACH IN ANY TRIAL 
-  STATE OR FEDERAL, JURY OR
NONJURY -  UNTIL THE FIRST WITNESS 
IS SWORN .................................................   20

A. First Witness Rule Thwarts Constitu­
tional Policy ................................................................. 22

B. Jeopardy should Attach on Voir Dire ....................... 27
CONCLUSION .................................................................................29

27



TABLE OF AUTHORITIES

Cases: Page
Apodaca v. Oregon, 406 U.S. 404 (1972) .......................  9,14,15

Bartkus v, Illinois, 359 U.S. 121 (1959) .................................... 4
Benton v. Maryland, 395 U.S. 784 (1969) ..................... 2,5,6,7

Breed v. Jones, 421 U.S. 519 (1975) ....................................  9,10
Cline v. Montana, 406 F. Supp.. 430 (Mont. 1975) . . . . . . . .  9

Cornero v. United States, 48 F.2d 69 (9th Cir.
1931) ................................................................................ 17,18

Green v. United States, 355 U.S. 184 (1957) .............  16,17,26
Illinois v. Somerville, 410 U.S. 458 (1973) ..........  3,1 1,12,21,28

Ker v. California, 374 U.S. 23 (1963) ....................................  2,8

Malloy v. Hogan, 378 U.S. 1 (1964)   2,7,8

Palko v. Connecticut, 302 U.S. 319 (1937) ............................. 6,7

Pointer v. Texas, 380 U.S. 400 (1964) ....................................  2,8
Serfass v. United States, 420 U.S. 377 (1974) . . 10,12,13,19,29

Smith v. Mississippi, 478 F.2d 88 (5th Cir.) cert.
den. 414 U.S. 1113 (1973) ................................................ 1 1,26

State v. Cunningham, 535 P.2d 186 (Mont. 1975) ............ 24,25

Thomas v. Beasley, 491 F.2d 507 (6th Cir. 1974) ..................11

United States ex rel. Webb v. Court of Common
Pleas, 516 F.2d 1034 (3rd Cir. 1975) .................................. 11

United States ex rel. Somerville v. Illinois, 447 F.2d
733 (7th Cir. 1971) ..................................................................H

United States v. Jorn, 400 U.S. 470 (1970) .....................passim

United States ex rel. Rogers v. LaVallee, 517 F.2d
1330 (2nd Cir.) cert. den. 423 U.S. 1078 (1 9 7 6 )............... 11

United States v. Martin Linen Supply Co., 430 U.S.
564, 569 (1977)   9

United States v. Watson, 38 Fed. Cas. 449 (SONY
1868)   4,29

( ii)

28



d a )

Page

Wade v. Hunter, 336 U.S. 684 (1948) ................ 13,18,19,21,29

Whitfield v. Warden of Maryland, 486 F.2d 1118
(4th Cir. 1973) .......................................................................11

Williams v. Florida, 399 U.S. 78 (1970) ..................... 9,13,14,15

Winsor v. The Queen, L.R. 1 Q.B. 289 (1866) .......................  5

Statutes Cited:

Model Penal Code, § 1.08(4) ........................................................ .20

Rule 23(b) Federal Rules of Criminal Procedure .................. 9,14

Rule 31 Federal Rules of Criminal Procedure ....................... 9,14

Treatises:

Blackstone’s Com m entaries..................    4,5
Schulhofer, Jeopardy and Mistrials, Univ. of Pa. L.

Rev. Vol. 125 No. 3 (1977) .................................. 4,22,27,28

29



Supreme Court of tfje fBmteb States*
OCTOBER TERM, 1977

IN THE

No. 76-1200

ROGER CRIST, as Warden of the Montana State 
Penitentiary, Deer Lodge, Montana, et al.,

Appellants,
v.

MERREL CLINE and L.R. BRETZ,
Appellees.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR APPELLEE MERREL CLINE 
ON RE-ARGUMENT

QUESTIONS PRESENTED

1. Is the rule heretofore applied to the Federal 
Courts — that jeopardy attaches in jury trials when the 
jury is sworn — constitutionally mandated?

2. Should the United States Supreme Court hold 
that the Constitution does not require jeopardy to

31



2

attach in any trial -  state or federal, jury or nonjury, 
until the first witness is sworn?

STATEMENT OF CASE

This is an appeal by the State of Montana from the 
Ninth Circuit Court of Appeals’ reversal of a denial of 
Appellees’ petition for a Writ of Habeas Corpus. The 
facts and proceedings which lead to this appeal are set 
out in detail on pages 3 through 6 of Appellee Cline’s 
original brief on file herein. This matter was originally 
argued before this Court on November 1, 1977. On 
December 5, 1977, this Court ordered that counsel for 
Appellants and Appellees, as well as the Solicitor 
General, brief the two issues set forth above and 
prepare for reargurhent.

SUMMARY OF ARGUMENT

When a particular guarantee of the Bill of Rights is 
incorporated in the Due Process Clause of the 
Fourteenth Amendment, the same constitutional stan­
dards must govern application of that guarantee by 
both federal and state courts. See Malloy v. Hogan, 378 
U.S. 1, 11 (1964); Ker v. California, 374 U.S. 23, 33 
(1963); Pointer v. Texas, 380 U.S. 400, 406 (1964). 
The Double Jeopardy Clause of the Fifth Amendment 
has been applied to the states through the Due Process 
Clause of the Fourteenth Amendment. Benton v. 
Maryland, 395 U.S. 784, 795 (1969). In interpreting 
the Double Jeopardy Clause, the U.S. Supreme Court

32



3

has held that jeopardy attaches upon the impaneling 
and swearing of the jury. Downum v. United States, 
372 U.S. 734 (1963); United States v. Jorn, 400 U.S. 
470 (1970); Illinois v. Somerville, 410 U.S. 458 (1973).

The rule that jeopardy attaches upon the swearing of 
the jury expresses a judgment that the constitutional 
policies underpinning the Fifth Amendment guarantee 
are implicated at that point in the proceeding. United 
States v. Jorn, 400 U.S. at 479-480. The constitutional 
policies implicated at that point in a proceeding are (1) 
protecting the accused from the financial, physical and 
psychological enervation worked by repetitive prosecu­
tions, and (2) preserving the accused’s “valued right to 
have his trial completed by a particular tribunal”, 
United States v. Jorn, 400 U.S. at 484-485.

If this Court were to hold that jeopardy does not 
attach, in any trial, state or federal, jury or nonjury, 
until the first witness is sworn, the constitutional 
policies supporting the Fifth Amendment guarantee 
would be sacrificed.

Since the conclusion that jeopardy attaches merely 
begins the inquiry of whether or not a mistrial 
comports with the Double Jeopardy Clause, Illinois v. 
Somerville, 410 U.S. at 467-468, appellee submits that 
the Court should not absolutely eliminate double 
jeopardy protection between the time the jury is sworn 
and the time that testimony commences, by holding 
that jeopardy does not attach in a jury trial until the 
first witness is sworn. Such a rule defeats the 
constitutional policy of protecting an accused’s “valued 
right to have his trial completed by a particular 
tribunal.”

33



4

HISTORICAL PERSPECTIVE

The Fifth Amendment Double Jeopardy Clause 
embodies “one of the oldest ideas tound in Western 
Civilization.” Bartkus v. Illinois, 359 U.S. 121, 151 
(1959) (Black, J., dissenting). The concept of Double 
Jeopardy dates back to early Greek, Roman and Canon 
law. United States v. Jenkins, 490 F.2d 868, 879-81 
(2nd Cir. 1973) (Friendly, J.), affirmed, 420 U.S. 358 
(1975).

Blackstone stated that it is a “universal maxim of the 
common law of England, that no man is to be brought 
into jeopardy of his life, more than once for the same 
offense.” 4 W. Blackstone, Commentaries 335. Professor 
Schulhofer points out that the common law plea of 
former jeopardy was unavailable when proceedings were 
terminated prior to judgment because jeopardy was not 
deemed to “attach” until the verdict was rendered and 
duly recorded. Schulhofer, Jeopardy and Mistrials, 125 
U. Pa. L. Rev. 449, 453 (1977). Further, a judge, 
before recording a verdict, could ask the jury to 
reconsider its verdict. As long as only one verdict was 
recorded, a verdict of acquittal could be changed to one 
of conviction without imposing double jeopardy. See, 4 
W. Blackstone, Commentaries, 335-38.

American jurisdictions have greatly expanded to 
scope of the common law doctrine of Double Jeopardy. 
As stated, common law jeopardy did not attach until a 
verdict was rendered. American courts, however, have 
greatly expanded the protection of the doctrine by 
requiring that jeopardy attach upon the swearing of the 
jury. United States v, Watson, 28 Fed. Cas. 449 (SDNY 
1868); Downum v. United States, 372 U.S. 734 (1963).

34



5

This American rule is rooted in the common law 
doctrine that, once the jury was sworn, the case was 
committed to the jurisdiction of the Court and the 
judge could not dismiss the jury except in cases of 
“evident necessity.” 4 W. Blackstone, Commentaries 
360. Unlike an American defendant, however, the 
common law defendant could not prevail on a plea of 
former jeopardy after an improper discharge of the jury 
by the trial judge. Winsor v. The Queen, L.R. 1 Q.B. 
289 (1866).

The question presented by this appeal is whether or 
not the rule that jeopardy attaches upon the swearing 
of the jury is mandated by the United States 
Constitution or whether it is a historical accident 
adopted by this Court in its supervisory capacity over 
federal courts?

ARGUMENT

I .

THE RULE THAT JEOPARDY ATTACHES 
UPON THE SWEARING OF THE JURY IS 
CONSTITUTIONALLY MANDATED.

A. Double jeopardy protection must be gov­
erned, in both federal and state courts, by 
constitutional “standards” .

Prior to its decision in Benton v. Maryland, 395 U.S. 
784 (1969), the Supreme Court employed the “funda­
mental fairness” doctrine to test the constitutionality of 
prosecutions by State and federal authorities under the 
Double Jeopardy Clause of the Fifth Amendment.



6

Palko v. Connecticut, 302 U.S. 319 (1937).
In Palko, rather than look to the specific guarantees 

of the Bill of Rights, the Court ascertained whether 
“due process” had been satisfied. Under Palko, the 
states were free to differ from the Federal standards 
governing application of the Fifth Amendment, so long 
as the totality of the circumstances did not disclose a 
denial of fundamental fairness. Only when a kind of 
double jeopardy subjected a defendant to “. . . a 
hardship so acute and shocking that our polity will not 
endure it,” did the Fourteenth Amendment prohibit 
reprosecution. Palko, 302 U.S. at 328.

In Benton v. Maryland, the Court rejected the Palko 
“fundamental fairness” doctrine and held that state as 
well as federal Courts are bound by constitutional 
standards under the Bill of Rights.

“Palko represented an approach to basic constitu­
tional rights which this Court’s recent decisions 
rejected. It was cut of the same cloth as Betts vs. 
Brady, 316 U.S. 455 (1942), the case which held 
that a criminal defendant’s right to counsel was to 
be determined by deciding in each case whether 
the denial of that right was “shocking to the 
universal sense of justice.” id. at 462. . . . Our
recent cases have thoroughly rejected the Palko 
notion that basic constitutional rights can be 
denied by the states so long as the totality of the 
circumstances does not disclose a denial of 
“fundamental fairness.” Once it is decided that a 
particular Bill o f  Rights guarantee is fundamental 
to the American scheme o f  justice, Duncan vs. 
Louisiana, supra, at 149, the same constitutional 
standards apply against both the state and federal 
governments. Palko’s roots had thus been cut away 
years ago. We today only recognize the inevita- 

36 ble. . .” Benton, 395 U.S. at 794-95. (Emphasis 
added)



7

Thus, in Benton v. Maryland, the Court found that 
the double jeopardy prohibition of the Fifth Amend­
ment represents a fundamental ideal in our constitu­
tional heritage and applied that guarantee to the states 
through the Fourteenth Amendment. The validity of 
defendant Benton’s larceny conviction was judged, not 
by the watered-down standard enunciated in Palko, but 
under the specific provisions and standards of the Fifth 
Amendment Double Jeopardy Clause.

In light of Benton v. Maryland, the question 
presently before the Court is whether or not the time 
at which jeopardy attaches is a constitutional “stan­
dard” or whether it is a non-constitutional consequence 
of the Supreme Court’s supervisory power over Federal 
Courts which countenances different applications in 
state and federal courts?

Each time this Court has interpreted the Fourteenth 
Amendment as encompassing a particular guarantee of 
the Bill of Rights, the Court has, without exception, 
ruled that the same constitutional standards apply 
against both state and federal authorities. In Malloy v. 
Hogan, 378 U.S. 1, 11 (1963), this Court held:

“The state urges, however, that the availability of 
the privilege [self-incrimination] to a witness in a 
state inquiry is to be determined according to a 
less stringent standard than is applicable in a 
federal proceeding. We disagree. We have held that 
the guarantees of the First Amendment (cases), the 
prohibition of unreasonable searches and seizures 
of the Fourth Amendment, (cases), and the right to 
counsel guaranteed by the Sixth Amendment, 
(cases), are all to be enforced against the states 
under the Fourteenth Amendment according to 
the same standards that protect those personal 
rights against federal encroachment. In the coerced

37



confession cases, involving the policies of the 
privilege itself, there has been no suggestion that a 
confession might be considered coerced if used in 
a federal but not a state tribunal. The Court thus 
has rejected the notion that the Fourteenth 
Amendment applies to the states only a “watered- 
down, subjective version of the individual guaran­
tees of the Bill of Rights,” (cases).” Malloy v. 
Hogan, 378 U.S. at 11.
In Ker v. California, 374 U.S. 23, 30 (1963), the 

Court held that the Fourth Amendment is enforceable 
against the states “by the application of the same 
constitutional standard prohibiting unreasonable 
searches and seizures.” Likewise, in Pointer v. Texas, 
380 U.S. 400, 406 (1964), the Court held that the 
Sixth Amendment confrontation clause “is to be 
enforced against the states under the Fourteenth 
Amendment according to the same standards that 
protect those personal rights against federal encroach­
ment”.

Appellee submits that the states have no more liberty 
to “water-down” the guarantees of the Fifth Amend­
ment than they have to water-down the guarantees of 
the First, Fourth and Sixth Amendments. As with the 
constitutional guarantees involved in Malloy, Ker, and 
Pointer, it would be incongruous to have different 
standards determine the validity of a claim of Double 
Jeopardy depending on whether the claim was asserted 
in a state or a federal court. Since it is the same 
fundamental constitutional guarantee being asserted in 
both the federal and state court, the same standards 
must determine at what point Fifth Amendment 
Jeopardy attaches in both federal and state proceedings.

8

38



9

B.The Federal Courts have treated the present 
rule concerning the attaching of jeopardy as 
one of constitutional stature.

In interpreting the Sixth Amendment, this Court has 
held that the unanimity requirement (Rule 31 F.R. 
CrimJProc.) and the 12-person requirement (Rule 23b
F.R.Crim.Proc.) are not constitutionally mandated. 
Apodaca v. Oregon, 406 U.S. 404 (1972); Williams v. 
Florida, 399 U.S. 78 (1970). The “attaching of 
jeopardy” rule, however, is not a rule of federal 
criminal procedure. Rather, the attaching of jeopardy 
rule is a substantive rule enunciated by this Court most 
recently in United States v. Martin Supply Company, 
430 U.S. 564, 569 (1977). That the rule serves as a 
linchpin for all double jeopardy jurisprudence is 
evidenced by the fact that federal courts have, without 
exception, applied the so-called federal rule to habeas 
corpus petitions from state court prisoners.

For example, in Breed v. Jones, 421 U.S. 519 
(1975), the Court held that the prosecution of Breed as 
an adult in California Superior Court, after an 
adjudicatory finding in juvenile court that he had 
violated a criminal statute and after a subsequent 
finding that he was unfit for treatment as a juvenile, 
violated the Double Jeopardy Clause of the Fifth 
Amendment as applied to the states through the 
Fourteenth Amendment.

Although the Supreme Court did not “baldly assert 
that a state cannot determine at what point a trial 
commences”, Cline vs. Montana, 406 F. Supp. 430 
(1975) (Jur. St. p. 42), the Court went further than 
merely deciding that a juvenile proceeding constituted a 
“trial” within the meaning of the Fifth Amendment

39



10

Double Jeopardy Clause. The Court specifically imposed 
the federal standard as to when jeopardy attaches upon 
the California Court. Chief Justice Burger, speaking for 
a unanimous Court, stated:

“We therefore conclude that the respondent was 
put in jeopardy at the adjudicatory hearing. 
Jeopardy attached when the respondent was “put 
to trial before the trier of facts,” ibid., that is, 
when the juvenile court, as the trier of the facts, 
began to hear evidence. See Serfass v. United 
States, 420 U.S. 388.” Breed v. Jones, 421 U.S. 
519, 531 (1974).
Although the Breed case involved a judge trial rather 

than a jury trial, the case is significant because the 
Court imposed the federal standard on the California 
Court and cited Serfass v. United States as authority. 
The Serfass decision states that in the case of a nonjury 
trial, jeopardy attaches when the court begins to hear 
evidence, however, “In the case of a jury trial, jeopardy 
attaches when a jury is empaneled and sworn.” Serfass, 
420 U.S. at 388.

In Serfass the Court stated rules for the “attaching of 
jeopardy” in both jury and non-jury trials. Since the 
Court relied on Serfass in a non-jury, state court case 
(Breed), logic suggests that the Court likewise would 
rely on Serfass in a state court jury case. In specifically 
applying the federal standard to the State of California 
in Breed, the Supreme Court, in effect, held that the 
standard enunciated in Serfass is of constitutional 
stature and that the states may not determine for 
themselves at what time jeopardy attaches.

Seven Circuit Courts of Appeals (including the 9th 
Circuit) have addressed themselves to habeas corpus 
petitions from state prisoners and all seven Circuits have

40



held that the decisions of the United States Supreme 
Court require that jeopardy attach when the jury is 
impaneled and sworn. Four of the Circuits have applied 
the federal rule to the states as a matter of course with 
no discussion of the issue. United States ex rel. Rogers 
v. LaVallee, 517 F.2d 1330, 1333 (2nd Cir. 1975); cert, 
den., 423 U.S. 1078 (1976); United States ex rel. Webb 
v. Court o f  Common Pleas, 516 F.2d 1034, 1039 (3rd 
Cir. 1975); Whitfield v. Warden o f  Maryland, 486 F.2d 
1118, 1122 (4th Cir. 1973); Thomas v. Beasley, 491 
F.2d 507, 508 (6th Cir. 1974).

In United States ex rel. Somerville v. Illinois, 447 
F.2d 733, 735 (7th Cir. 1971), rev’d. on other grounds, 
410 U.S. 458 (1973), the Seventh Circuit was presented 
with an argument identical to the argument made here, 
and ruled that federal, not state, law “is controlling on 
the issue as to when jeopardy attaches.” In Smith v. 
Mississippi, 478 F.2d 88, 93 (5th Cir.) cert, den., 414 
U.S. 1 113 (1973), the Fifth Circuit addressed a double 
jeopardy claim of a state prisoner and concluded:

“The [state’s] contention that petitioner was not 
put to trial or was in no way prejudiced by the 
dismissal of the proceedings before testimony was 
presented has been decided adversely to it by the 
Supreme Court in Downum . . . and Somerville. . . .
In both cases the Supreme Court held that 
jeopardy attached when the first jury was selected 
and sworn.”
Implicit in the Fifth Circuit’s reliance on Downum 

and Somerville is the reasoning that sound policy 
dictates having jeopardy attach upon the swearing of 
the jury.

11

41



12

C. The Federal Rule is constitutionally man­
dated.

The constitutional stature of the federal rule is 
apparent from this Court’s opinion in Serfass v. United 
States, 420 U.S. 377 (1975). Serfass was indicted for 
willful failure to report for and submit to induction 
into the Armed Forces. He filed a pre-trial motion to 
dismiss the indictment. The motion was granted and the 
government appealed. Serfass argued that, although the 
first witness had not yet been sworn, jeopardy had 
“constructively” attached and the appeal was therefore 
barred. Serfass contended that the attachment rule was 
a mere technicality which should yield to a policy 
analysis. Serfass, 420 U.S. at 390. The Court rejected 
this argument and held that the rule is not a mere 
technicality, rather,. “It is, of course, like most legal 
rules, an attempt to impart content to an abstraction.” 
Serfass, 420 U.S. at 391.

The Court has thus imparted content to the Fifth 
Amendment Double Jeopardy Clause by delineating a 
point in the trial at which constitutional policies are 
brought into play.

“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 
480. In the case o f a jury trial, jeopardy attaches 
when a jury is empaneled and sworn. Downnm 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

42



13

hear evidence. McCarthy v. Zerbst, 85 F.2d 640, 
642 (CA 10 1936). See Wade v. Hunter, 336 U.S. 
684, 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 479. 
[Further citations omitted.]” Serfass v. United 
States, 420 U.S. 377, 388 (1974).
In concluding that jeopardy attaches upon the 

swearing of the jury, this Court “expresses a judgment 
that the constitutional policies underpinning the Fifth 
Amendment’s guarantee are implicated at that point in 
a proceeding.” Jorn, 400 U.S. at 479-480.

Certainly when this Court imparts content to an 
abstraction by expressing its judgment as to the 
implicating of constitutional policies, it is not exercising 
its supervisory powers over federal courts; nor is it 
promulgating a “rigid, mechanical” rule founded on 
historical accident. On the contrary, the Court has 
recognized that the rule that jeopardy attaches upon 
the swearing of the jury is necessary to effect the 
purpose of the Fifth Amendment guarantee. The Court 
has acknowledged that the rule bears a direct 
relationship to the prohibition against being placed 
twice in jeopardy.

D. Substantive Rule vs. Historical Accident.

In Williams v. Florida, 399 U.S. 78 (1970), this 
Court was confronted with an issue very similar to that 
posed in this appeal. In Williams the Court addressed



14

the issue of whether the federal rule requiring a 
twelve-man jury (Rule 23b, F.R. Crim. Proc.) is of 
constitutional stature or whether the states, in applying 
the Sixth Amendment guarantee, can proceed with less 
than a twelve person jury. Justice White, writing for the 
Court, concluded that the number 12 is incidental to 
the real purpose of the amendment. Williams, 399 U.S. 
at 103. The Court concluded that the number 12 was 
merely an “historical accident”.

“We conclude in short, as we began: The fact that 
the jury of common law was composed of 
precisely twelve is a historical accident, not 
necessary to effect the purposes of the jury system 
and wholly without significance except to 
mystics.” Williams, 399 U.S. at 102.
Dissenting from this conclusion, Justice Harlen saw 

the Court’s opinion in Williams as concluding that 
history, “. . . is no guide to the meaning of those rights 
whose form bears no relation to the policy they reflect. 
In this context the twelve - member feature of the 
classical, common-law jury is apparently regarded by 
this Court as mere adornment.” Williams, 399 U.S. at 
125.

In Apodaca v. Oregon, 406 U.S. 404 (1972), this 
Court was called upon to determine whether the 
unanimity requirement (Rule 31, F.R. Crim. Proc.) is 
constitutionally mandated.

The Court employed a two-stepped analysis. First the 
Court looked to the function served by the jury in 
contemporary society — to protect the accused from a 
corrupt and over zealous prosecutor by interposing the 
common sense judgment of a group of laymen. 
Apodaca, 406 U.S. at 410. Secondly, as in Williams, the

44



15

Court determined whether the federal rule is necessary 
to effect that purpose. The Court concluded,

“A requirement of unanimity does not materially 
contribute to the exercise of this common sense 
judgment.” Apodaca, 406 U.S. at 410.
Appellee draws the Court’s attention to the Williams 

and Apodaca decisions because the case at hand lends 
itself to the “purpose” analysis of these two decisions. 
The purposes behind the “attachment of jeopardy” are 
(1) to protect the accused from financial, physical and 
psychological enervation worked by repetitive prosecu­
tions, and (2) to preserve the accused’s valued right to 
proceed to trial before a particular tribunal. In light of 
these two purposes, the rule that jeopardy attaches 
upon the swearing of a jury is no historical accident nor 
is it mere “adornment”. Rather, the rule bears a direct 
relationship to the underlying policies of the Double 
Jeopardy Clause. The rule is necessary to effect the 
purposes behind having jeopardy “attach”.

E. The Policies Underpinning the “Attachment 
of Jeopardy Rule”.

Thus far appellee has argued that the rule as to the 
attaching of jeopardy is constitutionally mandated 
because it defines a point at which constitutional 
policies are implicated. Attention must now be focused 
on (1) Precisely what those policies are, and (2) 
whether the present rule is necessary to effect those 
policies.

As stated, the attachment of jeopardy rule serves two 
purposes: (a) protecting the accused from financial,

45



16

physical and psychological enervation worked by 
repetitive prosecutions and (b) preserving the accused’s 
valued right to have his trial completed by a particular 
tribunal.

The policy against subjecting a defendant to repeated 
prosecutions and harassment is expressed in Green v. 
United States, 355 U.S. 184 (1975).

“The constitutional prohibition against double 
jeopardy was designed to protect an individual 
from being subjected to the hazards of trial and 
possible conviction more than once for an alleged 
offense.”

* * *
“The underlying idea, one that is deeply engrained 
in at least the Anglo-American system of juris­
prudence, is that the state with all its resources 
and powers should not be allowed to make 
repeated attempts to convict an individual for an 
alleged offense, thereby subjecting him to embar­
rassment, expense, and ordeal and compelling him 
to live in a state of anxiety and insecurity, as well 
as enhancing the possibility that even though 
innocent he may be found guilty.” Green, 355 
U.S. at 188.
The Court’s concern with prosecutorial and judicial 

over-reaching is expressed as follows:
“Moreover it is not even essential that the verdict 
of guilt or innocence be returned for a defendant 
to have once been placed in jeopardy so as to bar 
a second trial on the same charge. This Court, as 
well as most others, has taken the position that a 
defendant is placed in jeopardy once if put on trial 
before a jury so that if the jury is discharged 
without his consent he cannot be tried again, 
[citations omitted]. This prevents a prosecutor or 
judge from subjecting a defendant to a second

46



17

prosecution by discontinuing the trial when it 
appears that a jury might not convict.” Green, 355 
U.S. at 188.
The Court later elaborated on these policies in 

United States v. Jorn, 400 U.S. 470 (1970), wherein it 
held:

“The Fifth Amendment’s prohibition against plac­
ing a defendant twice in jeopardy represents a 
constitutional policy of finality for the defendant’s 
benefit in Federal criminal proceedings. A power 
in government to subject the individual to repeated 
prosecutions for the same offense would cut 
deeply into the framework of procedural protec­
tions which the Constitution establishes for the 
conduct of a criminal trial. And society’s aware­
ness of the heavy personal strain which a criminal 
trial represents for an individual defendant is 
manifest 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.
U.S., . . .  [quotation from Green omitted]. These 
considerations have lead 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 facts, whether the trier be a 
jury or a judge, [citations omitted].” Jorn, 400 
U.S. at 479-480.
The policy of “preserving the accused’s valued right 

to proceed to trial before a particular tribunal” 
apparently finds its roots in Cornero v. United States, 
48 F.2d 69 (9th Cir. 1931), See Downnm v. United 
States, 371 U.S. 734, 739 (1962) (Clark, J„ dissenting). 
In the Cornero case, a jury was impaneled on May 3, 
1928. Due to the absence of government witnesses, the 
case was continued to May 8, 1928. On May 8th the

47



18

jury was discharged. On May 6, 1930, a new jury was 
impaneled and the defendant was tried and convicted. 
In determining whether or not Cornero had been placed 
twice in jeopardy, the Ninth Circuit stated:

“The general rule is that, where the jury has been 
impaneled for the trial of a criminal case, jeopardy 
has attached, and in such a case the plea of former 
jeopardy should be sustained.” Cornero, 48 F.2d 
at 69.
Without using the phrase, “valued right to a 

particular tribunal”, the Ninth Circuit acknowledged the 
defendant’s right to proceed before that jury:

“An examination of the cases cited will disclose 
the fact that no court has gone to the extent of 
holding that, after the impaneling of a jury for the 
trial of a criminal case, the failure of the district 
attorney to have present sufficient witnesses, or 
evidence to prove the offense charged, is an 
exception to the rule that the discharge of a jury 
after its impanelment for the trial of a criminal 
case operates as a protection against the retrial of 
the same case.” Cornero, 48 F.2d at 71.
The phrase “valued right to a particular tribunal” 

first appeared in 1948 in the decision of Wade v. 
Hunter, 336 U.S. 684, (1948). In discussing the double 
jeopardy claim asserted by Wade, this Court stated:

“And there have been instances where a trial judge 
has discovered facts during a trial which indicated 
that one or more members of a jury might be 
biased against the government or the defendant. It 
is settled that the duty of the judge in this event is 
to discharge the jury and direct a retrial. What has 
been said is enough to show that a defendant’s 
valued right to have his trial completed by a 
particular tribunal must in some instances be

48



19

subordinated to the public’s interest in fair trials 
designed to end in just judgments.” Wade, 336 
U.S. at 689.
The “valued right to a particular tribunal” concept 

has played a key role in this Court’s decisions in 
Downum v. United States, 372 U.S. 734, 736 (1963), 
and in United States v. Jorn, 400 U.S. 470, 480 (1971).

The policies of protecting the defendant’s “valued 
right to a particular tribunal” and of protecting the 
defendant from repeated prosecutions are the policies 
alluded to by the Court when it states:

“Thus the conclusion that jeopardy attaches when 
trial commences expresses a judgment that the 
constitutional policies underpinning the Fifth 
Amendment’s guarantee are implicated at that 
point in a proceeding.” Jorn, 400 U.S. at 480. 
Accord Serfass v. United States, 420 U.S. at 390.
These two policies, particularly the concern with 

protecting the defendant’s “valued right to proceed to 
trial before a particular tribunal”, dictate that jeopardy 
attach no later than the swearing of the jury.

If jeopardy were to attach at the swearing of the first 
witness, there would then exist a period of time, 
subsequent to the impaneling of the jury, during which 
the defendant’s double jeopardy interests would be 
arbitrarily foreclosed from consideration. The de­
fendant’s “valued right” to proceed would become 
more subject to prosecutorial manipulation. The 
prosecutor would then have a period of time after the 
impaneling of the jury (but before jeopardy had 
attached) during which he could dismiss the jury in 
order to: (1) Deprive the defendant of a favorably 
disposed tribunal, or (2) correct a tactical set-back to

49



20

the prosecution, or (3) take advantage of knowledge 
gained from defense voir dire questions; defense 
motions or defense counsel’s opening statement.

Unless jeopardy attaches upon the swearing of the 
jury, defendant’s “valued right to proceed before a 
particular tribunal” is afforded no protection and the 
Fifth Amendment Double Jeopardy Clause thereby 
loses its substance.

II.

SHOULD THIS COURT HOLD THAT THE 
CONSTITUTION DOES NOT REQUIRE 
JEOPARDY TO ATTACH IN ANY TRIAL -  
STATE OR FEDERAL, JURY OR NON­
JURY -  UNTIL THE FIRST WITNESS IS 
SWORN?

Having concluded that the rule requiring jeopardy to 
attach upon the swearing of a jury is constitutionally 
mandated, appellee Cline submits that the Court’s 
second question must be answered in the negative.

Implicit in the second question posed by the Court is 
the suggestion that the attaching of the jeopardy rule 
should be the same for jury and nonjury trials. See 
Model Penal Code, §1.08(4) (Proposed official Draft 
1962). Appellee submits that there is a valid reason for 
having jeopardy attach at a different time in a jury trial 
than in a nonjury trial and that there is no need to 
conform the rules merely for the sake of uniformity.

This Court has consistently held that a major purpose 
of the Double Jeopardy Clause is to protect a 
defendant’s valued right to proceed to trial before a

50



21

particular tribunal. Wade v. Hunter, 336 U.S. at 689; 
accord, Illinois v. Somerville, 410 U.S. at 473; United 
States v. Jorn, 400 U.S. at 480; Downum v. United 
States, 372 U.S. at 736. As already pointed out, this 
concern with the defendant’s “valued right” dictates that 
jeopardy attach immediately upon the impaneling of 
the jury in order to prevent dismissal of the jury 
through prosecutorial or judicial overreaching.

The defendant’s valued right to proceed before a 
tribunal has very little, if any, applicability to a nonjury 
trial because generally the same judge will be assigned 
to the other case upon refiling.

The role of the prosecutor and the defense counsel in 
a jury trial is very different from their rule in a nonjury 
trial. In a jury trial, the parties go about picking the 
members of the panel through voir dire questioning and 
challenges to jurors. However, in a nonjury trial, a judge 
is assigned the case without regard to the wishes of the 
litigants. In a Federal court the judge cannot be 
disqualified by one of the parties. In Montana State 
courts, a judge can be disqualified only within ten (10) 
days after he or she has been assigned to a particular 
case — long before the trial commences. Montana 
Supreme Court Rule, 34 State Reporter 26.

Obviously the defendant’s valued right to proceed 
before a particular tribunal is much more weighty in 
the context of a jury panel which the defendant has 
helped to hand pick in contrast to a judge which has 
been assigned to the case. A mistrial declaration after 
the jury is impaneled necessarily results, upon reprose­
cution, in a different panel passing judgment on the 
defendant. A mistrial declaration in a nonjury trial does 
not necessarily, or generally, result in a new judge being

51



22

assigned to the case. The defendant’s interest in 
retaining a panel that he or she has helped to select 
justifies a standard for jury trials different from that 
applicable in nonjury trials. Schulhofer, Jeopardy and 
Mistrials, supra, at 512.

A rule that jeopardy attaches in a jury trial upon the 
swearing of the first witness can be adopted only at the 
expense of the defendant’s valued right to proceed 
before a particular tribunal. Appellee submits that this 
is much too dear a sacrifice for conformity of rules.

A. The First Witness Rule Thwarts Constitutional 
Policy.

The First Witness Rule creates a period of time 
during which the jury has been sworn and yet the 
defendant’s interest in retaining the jury panel has no 
protection.

Although the swearing of the first witness normally 
follows shortly after the swearing of the jury, there still 
remains a very crucial interim period during which 
counsel may make opening statements and either side 
may make motions. This period of time may take only 
a few hours or it may span a week-end recess, thus 
taking days. Regardless of the length of time involved, 
the fact remains that this is a period of time during 
which the prosecution may contemplate the desirability 
of a jury panel which has been sworn as well as hear 
the opening statement of the defense counsel, should he 
chose to make one. If a prosecutor does not like what 
he sees and hears in the opening statements, or the 
jury’s reactions thereto, or if he decides that the jury is

52



23

defense oriented, he can dismiss the entire prosecution 
without any showing of manifest necessity or sound 
judicial administration, thus denying the defendant his 
valued right to have his trial completed by a particular 
tribunal. The first witness rule thus defeats the policies 
underpinning the Double Jeopardy Clause and lends 
itself to covert manipulation.

This Court has emphatically discouraged pre-verdict 
dismissals of juries.

“Harassment of an accused by successive prosecu­
tions or declaration of a mistrial so as to afford 
the prosecution a more favorable opportunity to 
convict are examples when jeopardy attaches. Gori 
v. United States, 367 U.S. 364 (1961).

* * *
“The discretion to discharge the jury before it has 
reached a verdict is to be exercised only in very 
extraordinary and striking circumstances, to use 
the words of Justice Story in United States vs. 
Coolidge . . .  for the prohibition of the Double 
Jeopardy Clause is not against being twice 
punished but against being twice put in jeopardy.” 
Downum v. United States, 372 U.S. 734, 736.
Contrary to the pronouncements of the Supreme 

Court that discharge of a jury prior to verdict is to be 
exercised only in “very extraordinary and striking 
circumstances”, the first witness rule allows the 
prosecution to dismiss a jury prior to verdict without 
any showing of “extraordinary circumstances” or 
manifest necessity.” In essence, the first witness rule 
gives the prosecution an infinite number of peremptory 
challenges by allowing the prosecutor to dismiss, 
arbitrarily, an entire prosecution; discharge the jurors; 
refile a charge and pick a new jury of twelve men and

53



24

women. The defendant has no corresponding privilege 
of aborting the entire proceeding at his whim and 
picking a new jury more to his liking. Defendant is 
denied the privilege afforded the prosecutor of 
examining the jury as a whole and the option of 
challenging all twelve jurors and starting anew. The first 
witness rule not only deprives a defendant of his valued 
right to have his trial completed by a particular 
tribunal, but also, it fails to put the defense on an 
equal footing with the prosecution in terms of 
challenging jurors.

As pointed out by the Montana Supreme Court, 
State v. Cunningham, 5.35 P.2d 186 (Mont. 1975) (App. 
26), the Federal rule is also imperfect since a 
prosecutor may be able to accomplish the same goal by 
dismissing the case after the jurors are impaneled but 
before they are sworn. However, a first witness rule 
would lend itself even more easily to prosecutorial 
manipulation than the present rule because, (1) it 
would give the prosecutor much more time to study the 
jury as a whole and to decide whether to dismiss and 
start anew with another panel, and (2) it would allow 
the prosecution to study the jury’s reaction to his 
opening statement, and (3) it would allow the 
prosecutor to hear the defense counsel’s opening 
statement before he, the prosecutor, committed himself 
to trial.

The mere fact that the present Federal rule is open 
to abuse is not an argument for abandoning the rule 
and the constitutional policy that the rule serves to 
protect (“valued right to proceed before a particular 
tribunal”). Rather, this is an argument for having 
jeopardy attach at an earlier stage (voir dire) rather 

54 than at a later stage (first witness).



25

If the Court were to hold that jeopardy does not 
attach until the swearing of the first witness, the 
holding would be tantamount to an abandonment of 
the defendant’s “valued right to proceed to trial before 
a particular tribunal”. Under such a rule, the 
defendant’s double jeopardy interests would be arbi­
trarily foreclosed from consideration at any time prior 
to the beginning of testimony.

Appellee knows of no policy considerations, constitu­
tional or otherwise, which would be better served by 
having jeopardy attach, in a jury trial, upon the 
swearing of the first witness. The Montana Supreme 
Court, in Cunningham, stated:

“Sound policy reasons exist for having this rule, 
principally that the jury as the trier of fact has 
nothing to consider until the first witness is called 
and sworn.” (App. 27).
There are two fallasies in this line of reasoning. First, 

the jury does have matters to consider prior to the 
swearing of the first witness, i. e., voir dire questions 
from defense counsel and from the prosecution;* 
opening statements by the prosecution and possibly by 
the defense; an omnibus instruction from the Judge;

*In state court where voir dire is conducted by counsel, the 
defense may reveal certain tactical strategies through voir dire 
questioning. For example, defense counsel quite often questions 
a juror about his attitude towards a defendant who does not take 
the witness stand; “will the juror ignore the Court’s instruction 
and hold this silence against the defendant?” The knowledge that 
a defendant is, or is not, going to take the stand may well 
change the prosecution’s approach to the case causing the 
prosecutor to dismiss and start over at a later time with a new 
panel.

55



26

stipulations executed by the parties and read to the 
jury by the Court.

Secondly, the jury has nothing further to consider 
upon the swearing of the first witness because the 
witness has not yet begun to testify. Even assuming, 
arguendo, that jeopardy attaches after testimony 
actually commences, the Fifth Circuit Court of Appeals 
has pointed out that the introduction of evidence has 
no meaningful significance in a double jeopardy 
determination in a jury trial.

“The mere introduction of evidence has no 
spontaneous affect on the defendant which can be 
said to automatically charge him with an appre­
ciable degree of insecurity once he has made the 
preparations for trial and selected those of his 
peers who will determine his fate.” Smith v. 
Mississippi, 478 F.2d 88, 93 (C.A. 5) cert, den., 
414 U.S. 11 13 (1973).
Aside from a specious need to have the “attachment 

of jeopardy” rule in jury trials conform with the rule in 
nonjury trials, there appears to be no policy or logic for 
adopting the first witness rule in a jury trial context. 
Such a rule opens the door to arbitrary dismissals after 
the jury is sworn thus depriving the defendant of his 
valued right to have his trial completed by a particular 
tribunal. United States v. Jorn, 400 U.S. at 484-485. It 
undermines the defendant’s right to be free from 
financial, physical and psychological enervation worked 
by repetitive prosecutions. Green v. United States, 355 
U.S. 184, 187-188 (1957). Finally, the first witness rule 
allows the prosecution an infinite number of peremp­
tory challenges to the jury panel.

56



27

B. Jeopardy should Attach on Voir Dire.

Appellee Cline submits that the Court, in reviewing 
the merits of the present “attaching of jeopardy” rule, 
should not limit its consideration to the swearing of the 
jury and the swearing of the first witness. As appellee 
has contended, there are sound arguments for having 
jeopardy attach at earlier stages of the trial. In a recent 
Law Review article, Jeopardy and Mistrials, 125 U. Pa. 
L. Rev. 449, Prof. Schulhofer proposes a scheme 
whereby jeopardy would attach upon commencement 
of voir dire. The propriety of a mistrial declaration or 
dismissal after the commencement of jury selection 
would be determined by one of two different standards 
depending upon what had transpired at trial. The first 
standard (Sound judicial administration) is a flexible 
standard. The second standard (strict necessity) is more 
stringent.

The flexible standard prohibits retrial unless justified 
by considerations of sound judicial administration. This 
standard has application in two situations:

“(1) Before the opening of testimony, provided 
that jury selection has not been unusually difficult 
and there are no concrete indications that the 
panel might be unusually favorable to the defense; 
and,
(2) Between the opening of testimony and the 
close of the government’s case in chief, provided 
that the underlying difficulty is not attributable to 
the prosecution, the prosecution has suffered no 
specific tactical setback during the course of the 
trial, and jury selection has not been especially 
difficult nor advantageous to the defense.” 
Jeopardy and Mistrials, supra, 514.

57



28

The more stringent rule would prohibit retrial unless 
the mistrial was justified by “strict necessity”. This 
standard would govern in the following three circum­
stances:

“ 1. Before the opening of testimony, if jury 
selection has been unusually difficult or advantage­
ous to the defense;
2. Between the beginning of testimony and the 
close of the government’s case, if the prosecution 
is responsible for the difficulty, if the proceedings 
have produced a specific tactical disadvantage for 
the prosecution, or if jury selection is especially 
difficult or advantageous to the defense; and,
3. After the close of the prosecution’s case, 
regardless of the circumstances.” Jeopardy and 
Mistrials, supra, 514.
Professor Schulhofer’s approach recognizes that there 

are situations prior to the swearing of the jury in which 
the defendant’s interests are of constitutional dimen­
sion. These interests, however, are sufficiently limited 
that they must yield to “some important countervailing 
interest of proper judicial administration”. Jeopardy 
and Mistrials, supra at 517 citing Illinois v. Somerville, 
410 U.S. 458, 471.

Appellee submits that the approach suggested by 
Prof. Schulhofer is more congruous with the history 
and substance of the Double Jeopardy Clause in 
American jurisprudence than is a rule which absolutely 
forecloses Double Jeopardy considerations during the 
initial stages of the trial by requiring that jeopardy 
attach no earlier than the swearing of the first witness.

58



29

CONCLUSION

Appellee Cline submits that the decisions of the 
courts in United States v. Watson, 28 Fed. Cas. 449 
(SDNY 1868); Downum v. United States, 372 U.S. at 
735-36 (that jeopardy attaches when a jury is 
impaneled and sworn), and Serfass v. United States, 420 
U.S. 377, 391 (the attaching of jeopardy rule is an 
attempt to impart content to an abstraction), and Wade 
v. Hunter, 336 U.S. 684, 689 (the defendant’s valued 
right to have his trial completed by a particular 
tribunal) require the conclusion:

1. That the rule that jeopardy attaches upon the 
swearing of the jury is constitutionally mandated; and,

2. That a rule that jeopardy does not attach, in a 
jury trial, until the swearing of the first witness would 
be tantamount to abandoning the defendant’s valued 
right to proceed to trial before a particular tribunal.

Respectfully submitted,

W. WILLIAM LEAPHART 
The Leaphart Law Firm 
1 N. Last Chance Gulch, #6 
Helena, Montana 59601

Attorney for Appellee Cline

59



Supreme Court of i\)t Umtrb ^>tatc£
OCTOBER TERM, 1977

IN THE

No. 76-1200

ROGER CRIST, as Warden of the Montana State 
Penitentiary, Deer Lodge, Montana, et al,

Appellants,
v.

MERREL CLINE and L.R. BRETZ,
Appellees.

ON APPEAL FROM THE UNITED STATES COURT 
OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR APPELLEE L.R. BRETZ 
ON RE-ARGUMENT

CHARLES F. MOSES 
The Terrace, Penthouse 
300 North 25th Street 
P.O. Box 2533 
Billings, Montana 59103

Counsel for Appellee Bretz

61



TABLE OF CASES

Page
Alexander v. State, 199 S.E.2d 918 (Ga. 1973) .......................  13

Baker v. State, 389 A.2d 348 (Md. 1972) ........................... 13, 14
Bayer v. Larson, 20 Utah 2d 121, 433 P.2d 1015

(1967) .................................... .................................................10

Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707,
89 S.Ct. 2056 ...................................................................... 3, 13

Bernard v. State, 481 S.W.2d 427 (Tex.) ................................. 14

Blondes v. State, 314 A.2d 746 (Md. 1974) ..............................9

Booker v. Phillips, 418 F.2d 434 ............................................ 8 ,14

Brown v. State Board of Education, 347 U.S. 483,
98 L.Ed. 873, 74 S.Ct. 686 (1954) ..........................................4

Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44
L.Ed.2d 346 (1975)  8

Cooper v. Aaron, 358 U.S. 1, 3 L.Ed.2d 5, 78 S.Ct.
1401 .............................................................................................. 12

Cox v. State, 205 Kan. 867, 473 P.2d 106 (1970) ..................10

Crim v. State, 294 N.E.2d 822 (Ind. 1 9 7 3 ) .................. .. .9

Downum v. United States, 372 U.S. 734 (1963) ..................  2 ,8

Ex parte Bornee, 85 S.E. 529 (W. Va.) ....................................14

Fanning v. Supreme Court, 320 A.2d 343 (Del.
1974) ............................................................................................. 9

Fonseca v. Judges, 299 N.Y.S.2d 493 (N.Y. 1971) .................... 9

Gonzalez v. Municipal Court, 3 C.A.3d 706 (Cal.
1973) ..........................................................................................  13

Henry v. Rockhill, 376 U.S. 775, 12 L.Ed.2d 79, 84
S.Ct. 1042 (1964) .......................................................................11

Himmelfarb v. U.S., 175 F.2d 924  8

Howard v. U.S., 372 F.2d 294  8
Jarrell v. State, 510 P.2d 127 (Kan. 1973) ............................... 13

( i )

63



Page

In re Juvenile, 306 N.E.2d 822 (Mass. 1974) ..........................  13

In re Lamb, 296 N.E.2d 280 (Ohio 1973) ...............................  14
Illinois v. Somerville, 410 U.S. 458, 467 (1973) .............  2, 3 ,8

Jones v. State, 302 A.2d 638 (Md. 1973) .................................. 13

Klinefelter v. Superior Court, 502 P.2d 531 (Cal.) .................. 14

Koehler v. State, 519 P,2d 422 (Alas. 1974) ............................... 9

Maes v. District Court, 503 P.2d 621 (Cal. 1972) .....................9

Markiewicz v. Black, 138 Col. 128, 330 P.2d 549 .....................9

McNeal v. Hollowell, 41 F.2d 1145 (1973) ..................  8, 14, 19

Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43
L.Ed.2d 570 ..............................................................................  15

Pennsylvania v. Mimms, ____ U.S. -------, Slip Op.
at 3 ............................................................................................. 3

People v. Graham, 350 N.Y.S.2d 458, 43 A.D.2d
183  14

People v. Jackson, 231 N.E.2d 722, cert. den. 88 
S.Ct. 1851, 391 U.S. 928, 20 L.Ed.2d 668 (N.Y.
1967) ........................................................................................... 9

People v. King, 510 P.2d 333 (Col. 1973) ..........................  9,13

People v. Scott, 337 N.Y.S.2d 640, 50 A.D.2d 933
(N.Y. 1972) ...........................................................................  9, 14

Pickins v. State, 383 P.2d 889 (Okla. 1964) ............................ 10
Regents of the Univ. of Calif, v. Bakke, No. 76-881 ................2

Serfass v. United States, 420 U.S. 377, 388 (1975) . . .  2 , 3 , 8

Smith v. State of Mississippi, 478 F.2d 88  9,14

State v. Allesi, 216 N.W.2d 805 (N.D. 1974) ..................... 9, 14

State v. Cutshall, 180 S.E.2d 745 (N.C. 1971) .......................  9

State v. Gustin, 510 P.2d 1290 (Kan. 1973) ..................................  13

State v. Helm, 66 Nev. 286, 209 P.2d 187, cert, 
den. 70 S.Ct. 794, 339 U.S. 942, 94 L.Ed. 1358 
(1949)  10

( ii)



(Hi)

Page
State v, Jackson, 503 S.W.2d 185 (Tenn. 1973) . . . . . . . .  ,14

State v. Rhodes, 76 N.M. 177, 413 P.2d 214
(1966) , appeal after remand 77 N.M. 536, 425
P.2d 47 ........................................................................................ 10

State v. Ridgley, 70 Wash.2d 555, 424 P.2d 632
(1967) ......................................................... ..............................10

State ex rel. Russell v. Perkins, 295 N.£.2d 805
(Ohio 1973) ........................................................................ .14

Taylor v. State, 474 S.W.2d 207 (Tex. 1971) .......................... 14

Torres v. State, 519 P.2d 788 (Alas. 1974) ............................... 9

U.S. v. Aurandt, 15 N.M. 292, 107 Pac. 1964
(1910)  . . . . . . 1 0 , 1 4

U.S. v. LeMay, 330 F. Supp. 629 (Mont.) .............................  .8

U.S. v. Martin Linen Supply Co., 430 U.S. 564, 569
(1977)   2 , 3 , 8

U.S. v. Watson, 28 Fed. Cas. 499    15

U.S. ex rel. Geleson v. Yegele, 479 F.2d 773 .................. .. . .14

Wade v. Hunter, 336 U.S. 684, 93 L.Ed. 974, 69
S.Ct. 834 ................................................................................. 8 ,19

65



Supreme Court of tfje Umteb States;
OCTOBER TERM, 1977

IN THE

No. 76-1200

ROGER CRIST, as Warden of the Montana State 
Penitentiary, Deer Lodge, Montana, et al.,

Appellants,
v.

MERREL CLINE and L.R. BRETZ,
Appellees.

ON APPEAL FROM THE UNITED STATES COURT 
OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR APPELLEE L.R. BRETZ 
ON RE-ARGUMENT

QUESTIONS PRESENTED

The Court has ordered briefing and reargument in the 
above case with respect to the following questions:

1. Is the rule heretofore applied in the federal courts 
-  that jeopardy attaches in jury trials when the jury is 
sworn — constitutionally mandated?

67



2

2. Should this Court hold that the Constitution does 
not require jeopardy to attach in any trial — in state or 
federal, jury or nonjury — until the first witness is 
sworn?1

The questions, so certified, are simple and straight­
forward. The answers are complex and suggest funda­
mental issues in the administration of justice. To 
perceive the scope of this inquiry and to place the case 
in proper perspective in light of this order remains 
unclear, but there are certain matters that invite 
attention.

1. Fundamental Issues are Involved.

Cases uniformly hold that jeopardy attaches when 
the jury is empanelled and sworn in both state and 
federal cases.* 2 No principle of law is more firmly 
established as a simple hornbook proposition. To 
suggest a departure from this principle requires 
motivations of utmost urgency and importance.3

‘ See Order dated December 5, 1977.
2 Since Downum v. United States, 372 U.S. 734 (1963), it has 

never been questioned in this Court that jeopardy attaches when 
the jury is sworn. See, e.g., Illinois v. Somerville, 410 U.S. 458, 
467 (1973); id. at 471 (White, J., dissenting); Serfass v. United 
States, 420 U.S. 377, 388 (1975); United States v. Martin Linen 
Supply Co., 430 U.S. 564, 569 (1977). See Marshall dissent.

3 Justice Marshall, in his dissent to the Order, refers to 
Regents o f  the University o f  California v. Bakke, No. 76-811, 
and states, “Again I believe the Court views the instant case as 
raising more momentous issues than those raised in Bakke”.

68



3

2. Precedent.

If the foregoing cases represent the law of the 
Supreme Court of the United States, then the law of 
precedent comes into focus as an issue. To urge an 
abandonment of Benton v. Maryland, of Somerville, of 
Serfass, or Martin Linen Supply Company means a 
possible departure from preceding pronouncements. In 
this respect, we may have to determine whether the law 
has outlived its usefulness and whether we are entering 
into an era where a different viewpoint is necessary and 
previous statements must now be examined for their 
relevance in the order of things.4

3. Certainty of the Law.

At issue is the challenge to the certainty requirement 
in the law. The bench and bar are entitled to know the 
rules of the game. The defendant must be advised what 
the law is — not what it might be — to provide 
effective counsel. This is not to reject changes in the 
law, but addresses itself to the rulings of the Supreme 
Court in interpreting the Constitution, which is binding 
on all of us. It is the “law of the land syndrome” 
which we must follow once the Court has spoken — 
which it has.5

4 Justice Marshall, in his dissent to the Order, focused on this 
matter in stating, “The Court appears once again to be reaching 
out for a vehicle to change a long line of precedent. See
Pennsylvania v. Mimms, ___ U .S.--------, Slip Op. at 3 (Stevens,
J., dissenting).”

5 See Illinois v. Somerville, Serfass v. U.S., and U.S. v. Martin 
Linen Supply Co., cited supra.

69



4

4. Need for Change.

Is there a pressing need for changes in the 
administration of justice that mandate or require that 
jeopardy attaches at some different time in the 
administration of justice for the benefit of both society 
and the defendant?

5. Federal Intervention.

Are the courts following a principle of applying the 
Constitution to states through the Fourteenth Amend­
ment unduly reducing the flexibility of states to enact 
its own laws to fit its own circumstances? Or, is this 
issue a matter of commonality to all states to insure to 
each citizen the benefit or the valued right to 
protection of jeopardy as stated by the highest court in 
the land?

6. State Action.

Can a state legislature ignore the rulings of a court 
and hope for approval of a different ruling? Is this, in 
itself, a dangerous precedent for any aspect of the law? 
Shall we let “a hundred flowers bloom” and thereby 
clog the courts by requiring them to interpret each 
change or modification, or require that the law as 
announced by the Supreme Court on constitutional 
rights be followed? In some respects, this issue is best 
exemplified by Brown v. State Board o f Education, 347 
U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 (1954), and the

70



5

efforts by the states to not comply over more than two 
decades and involving hundreds of court proceedings.

7. Reduction in Constitutional Rights.

We read that a “watered down version of constitu­
tional rights” is impermissible and that every man or 
woman is entitled to the full protection of constitu­
tional rights. Do we say, intellectually, that timing in 
the case of jeopardy is simply “non-constitutional 
baggage” or is it fundamental to the protection given?

8. Standards.

To measure or discuss the questions raised requires a 
consideration of the standards to be applied. One rule 
may be as fair as another, or arguably so, but where 
constitutional rights are involved even without delicate 
intellectual surgery, must there not be some “com­
pelling interest” to be served to justify a change or are 
merely “subjective judgments” adequate to create a new 
rule of law? We have always asserted that we are a 
government of laws and not of men, and is this what 
that phrase means? In addition, must the defendant 
“prove harm”, or the state “justify change” from prior 
pronouncements of the Supreme Court?

The list seems endless as we attempt to focus on the 
fundamental issues that arise from the questions 
presented. This brief will attempt to answer the 
questions presented to aid and assist the Court.

71



6

One fundamental distinction should be noted betore 
we discuss the issues presented. It seems proper and 
appropriate.

There is a vast and important difference between 
“crime” and “the administration of justice”. Crime is, 
simplistically stated, legislated anti-social conduct. It is 
committed by anti-social people who do not obey the 
rules of our society. Statistically, this involves children, 
the disadvantaged, and the recidivist, in large measure. 
The children do not receive the education or training to 
appreciate anti-social conduct. The disadvantaged, rich 
or poor, black, red, or white, have not had the 
opportunities for the benefits of our society to instill 
responsibility. The recidivist simply reflects exposure to 
peer re-enforcement of anti-social ideas. Jail is a 
learning process, not a rehabilitative one. Our permissive 
society, the pressures of society, both economic and 
social even in terms of population density are causes of 
crime. To limit crime simply means to eliminate the 
causes of crime.

The administration of justice, on the other hand, is a 
process by which we deal with persons charged with 
crime. It is a commitment by those involved to exert, 
at every stage of the proceedings, a “sense of fairness” 
so that no person will be deprived of his liberty 
without due process of law. We value liberty that 
highly.

To insure the “fairness” of this process, we abide by 
and conform with certain written and adjudicated 
constitutional rights, those principles which must govern 
such proceedings. We give to each person the full 
measure of his rights because that is basic and 
fundamental to the “administration of justice”.

72



7

The administration of justice is not crime prevention, 
it is simply what it is, and its ultimate goal is to achieve 
justice in any case with full protection and administra­
tion of constitutional rights.

Justice, then, is the ultimate issue that requires our 
attention to determine what protections are afforded 
this defendant in this case — whether in state or federal 
court.

ARGUMENT

1. The Rule That Jeopardy Attaches Upon the 
Swearing of the Jury is Constitutionally 
Mandated.

The issue presented to counsel by the Order of the 
Court dated December 5, 1977 to brief and reargue this 
issue is clearly stated. The language of the question 
presented merits and deserves consideration. It reads as 
follows:

“ 1. Is the rule heretofore applied in the federal 
courts -  that jeopardy attaches in jury trials when 
the jury is sworn -  constitutionally mandated.?”

The underlying premise acknowledging the existence of 
the rule is a proper beginning point for this discussion. 
The reason is obvious. The extent and scope of the 
establishment of this rule is relevant in determining the 
nationwide acceptance of this rule by judges, educators, 
lawyers, and all jurisdictions within the United States. 
The overwhelming weight of the evidence would then 
suggest that the rule is known and understood by all of 
those connected with the administration of justice and

73



8

that the specific language used cannot be said to be an 
historical accident. In addition, the language used can 
be demonstrated by overwhelming evidence to represent 
the nature and scope of the right discussed, and no 
delicate surgical intervention is necessary. The over­
whelming evidence as hereinafter cited refutes the 
concept that the jeopardy language as used in all 
jurisdictions is simply dictum or that by “parsing” we 
can eliminate any part of this concept. Thus, statements 
o f the rule and acceptance o f the rule as a basis for 
discussion is indeed the best evidence that the rule is 
constitutionally mandated.

The rule has been established that jeopardy attaches 
when the jury is empanelled and sworn.

(a) In the Supreme Court of the United States, the 
following cases establish this rule:

Downum v. United States, 3.72 U.S. 734 (1963) 
Illinois v. Somerville, 410 U.S. 458, 467 (1973)
Serf ass v. United States, 420 U.S. 377, 388 (1975)
U.S. v. Martin Linen Supply Co., 430 U.S. 564, 
569 (1977)
Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 
L.Ed.2d 346 (1975)

The language is clear and is without ambiguity.
(b) In the Federal District Courts the rule is the 

same. See U.S. v. LeMay, 330 F. Supp. 628 (Mont.), 
citing Wade v. Hunter, 336 U.S. 684, 93 L.Ed. 974, 69 
S.Ct. 834. See, also:

Himmelfarb v. United States, 175 F.2d 924 
Howard v. United States, 372 F.2d 294 
Booker v. Phillips, 418 F.2d 434 
McNeal v. Hollowell, 41 F.2d 1 145 (1973):

74



9

(The Supreme Court recognized that this 
O'eopardy) occurs when the jury is empanelled and 
sworn thus vesting the defendant with the valued 
right to have his trial completed before the 
tribunal and that jury.”
Smith v. State o f  Mississippi, 478 F.2d 88
(c) The text authorities are no less explicit. Wharton 

on Criminal Evidence, page 933, states “jeopardy 
attaches when the jury has been selected and sworn”. 
The same rule is stated in 22 C.J.S. Criminal Law, Sec. 
241 at page 639. See Cooley’s Constitutional Limita­
tions, 6th Ed. 399 (12 A.L.R. 1006).

(d) The states follow and understand this rule.
Torres v. State, 519 P.2d 788 (Alas. 1974)
Koehler v. State, 519 P.2d 442 (Alas. 1974)
Maes v. District Court, 503 P.2d 621 (Cal. 1972)
Fanning v. Supreme Court, 320 A.2d 343 (Del. 
1974)
Crim v. State, 294 N.E.2d 822 (Ind. 1973)
Blondes v. State, 314 A.2d 746 (Md. 1974)
People v. Scott, 337 N.Y.S.2d 640, 40 A.D.2d 933 
(N.Y. 1972)
People v. Jackson, 231 N.E.2d 722, cert. den. 88 
S.Ct. 1851, 391 U.S. 928, 20 L.Ed.2d 668 (N.Y. 
1967)
Fonseca v. Judges, 299 N.Y.S.2d 493 (N.Y. 1969) 
State v. Cutshall, 180 S.E.2d 745 (N.C. 1971)
State v. Attest, 216 N.W.2d 805 (N.D. 1974)
People v. King, 510 P.2d 333 (Colo. 1973)
Markiewicz v. Black, 1.38 Colo. 128, 330 P.2d 549, 
551 (1958) Markiewicz quotes from 22 C.J.S.

75



10

Criminal Law, Sec. 241, page 375, which in the
C.J.S. replacement volume is now found at page 
636.
Cox v. State, 205 Kan. 867, 473 P.2d 106 (1970)
Shuman v. Sheriff o f Carson City, 523 P.2d 841 
(Nev. 1974)
State v. Helm, 66 Nev. 286, 209 P.2d 187, cert, 
den. 70 S.Ct. 794, 339 U.S. 942, 94 L.Ed, 1358 
(1949)
State v. Rhodes, 76 N.M. 177, 413 P.2d 214
(1966) , appeal after remand 77 N.M. 536, 425 
P.2d 47
U.S. v. Aurandt, .15 N.M. 292, 107 Pac. 1064 
(1910)
Pickens v. State, 383 P.2d 889 (Okla. 1964)
State v. Buck, 239 Ore. 577, 398 P.2d 176 (1965), 
motion den. 239 Ore. 577, 399 P.2d 367
State v. Ellis, 511 P.2d 1264 (Ore. 1973)
Bayer v. Larson, 20 Utah 2d 121, 433 P.2d 1015
(1967)
State v. Ridglev, 70 Wash.2d 555, 424 P.2d 632 
(1967)
The obvious conclusion to be drawn is that jeopardy 

attaches when the jury is empanelled and sworn. The 
language is clear and explicit in all jurisdictions. It is a 
well known, accepted, and acknowledged rule of law. It 
is no historical accident. It is not an assumption that 
courts, educators, or counsel have assumed is implicit in 
the law. It is a stated principle of the Supreme Court of 
the United States. This basic premise is, in our opinion, 
established by the overwhelming weight of the 
authority in the United States everywhere.

76



11

Another fundamental premise that must be accepted 
is the force and effect of the supremacy clause of the 
Constitution of the United States. It reads as follows:

“This constitution and the laws of the United 
States which shall be made in pursuance thereof, 
and all treaties made, or which shall be made, 
under the authority of the United States, shall be 
the supreme law of the land; and the judges in 
every state shall be bound thereby, anything in the 
constitution or laws of any state to the contrary 
notwithstanding.”

This language of the Constitution is not susceptible to 
revision or modification. It means exactly what it says. 
The Federal Constitution and all laws enacted pursuant 
to the powers conferred by it on Congress are the 
supreme law of the land to the same extent as through 
written into every state law and will prevail over state 
law, whether embodied in state constitutional law, or in 
statutory law, or in judicial decisions, opinions and 
interpretations.6

Suffice it to point out the following cases of the 
Supreme Court of the United States. In Henry v. 
Rockhill, 376 U.S. 775, 12 L.Ed.2d 79, 84 S.Ct. 1042 
(1964), the Court held as follows:

“A rule stated in a decision by the Supreme Court 
of the United States and based upon the federal 
Constitution is, under the supremacy clause, 
binding upon the state courts as well upon federal 
courts.”

681A C.J.S. 311 States Section 22 for numberless cases in 
support of this proposition. See also 16 C.J.S. 25, Constitutional 
Law, Sec. 3.

77



12

In Cooper v. Aaron, 358 U.S, 1, 3 L.Ed.2d 5, 78 
S.Ct, 1401, the Court said:

“Article 6 of the Constitution makes the Constitu­
tion the ‘supreme Law of the Land’. In 1803, 
Chief Justice Marshall, speaking for a unanimous 
Court, referring to the Constitution as ‘the 
fundamental and paramount law of the nation’, 
declared in the notable case of Marbury v Madison 
(US) 1 Cranch 137, 177, 2 L ed 2d 60, 73, that 
‘It is emphatically the province and duty of the 
judicial department to say what the law is’. This 
decision declared the basic principle that the 
federal judiciary is supreme in the exposition of 
the law of the Constitution, and that principle has 
ever since been respected by this Court and the 
Country as a permanent and indispensable feature 
of our constitutional system. It follows that the 
interpretation of the Fourteenth Amendment 
enunciated by this Court in the Brown Case is the 
supreme law of the land, and Art 6 of the 
Constitution or Laws of any State to the Contrary 
notwithstanding.’ Every state legislator and execu­
tive and judicial officer is solemnly committed by 
oath taken pursuant to Art 6, cl 3, ‘to support this 
Constitution’. Chief Justice Taney, speaking for a 
unanimous Court in 1859, said that this require­
ment reflected the framers’ ‘anxiety to preserve it 
(the Constitution) in full force, in all its powers, 
and to guard against resistance to or evasion of its 
authority, on the part of a State . . .’ Ableman v 
Booth (US) 21 How 506, 425, 16 L ed 169, 176.
No state legislator or executive or judicial officer 
can war against the Constitution without violating 
his undertaking to support it. Chief Justice 
Marshall spoke for a unanimous Court in saying 
that: ‘If the legislatures of the several states may, 
at will, annul the judgments of the courts of the

78



13

United States, and destroy the rights acquired 
under those judgments, the constitution itself 
becomes a solemn mockery . . . United States v 
Peters (US) 5 Cranch 115, 136, 3 L ed 53, 59. A 
Governor who asserts a power to nullify a federal 
court order is similarly restrained. If he had such 
power, said Chief Justice Hughes, in 1932, also for 
a unanimous Court, ‘it is manifest that the fiat of 
a state Governor, and not the Constitution of the 
United States, would be the supreme law of the 
land; that the restrictions of the Federal Constitu­
tion upon the exercise of state power would be 
but impotent phrases . . . .’ Sterling v. Constantin, 
287 US 378, 397, 398, 77 L ed 375, 385, 53 S Ct 
190.”

As to jeopardy and the supremacy of the United 
States Constitution as set forth in the article of the 
Constitution cited and the case decisions, we note the 
following: Benton v. Maryland, 395 U.S. 784, 23 
L.Ed.2d 707, 89 S.Ct. 2056.

Other cases that agree that federal double jeopardy 
standards apply to all states are as follows:

Jones v. Breed, 497 F.2d 1160 (C.A. Cal. 1974)
Gonzalez v. Municipal Court, 3 C.A.3d 706 (Cal. 
1973)
Alexander v. State, 199 S.E.2d 918 (Ga. 1973)
State v. Gustin, 510 P.2d 1290 (Kan. 1973)
Jarrell v. State, 510 P.2d 127 (Kan. 1973)
People v. King, 275 N.E.2d 213 (111. 1971)
Thames v. Comm., 312 N.E.2d 569 (Mass. 1974)
In re Juvenile, 306 N.E.2d 822 (Mass. 1974)
Baker v. State, 389 A.2d 348 (Md. 1972)
Jones v. State, 302 A.2d 638 (Md. 1973)

79



14

Smith v. State, 478 F.2d 88 (C.A. Miss. 1973), 
cert. den. 94 S.Ct. 844, 414 U.S. 1113, 38 
L.Ed.2d 740
U.S. ex rel Geleson v. Yegele, 479 F.2d 773 (C.A. 
N.J. 1973), cert. den. 94 S.Ct. 370, 414 U.S. 
1008, 38 L.Ed.2d 246
People v. Graham, 350 N.Y.S.2d 458, 43 A.D.2d 
182 (1973)
In re Lamb, 296 N.E.2d 280 (Ohio 1973)
State ex rel Russell v. Perkins, 295 N.E.2d 805 
(Ohio 1973)
State v. Allesi, 216 N.W.2d 805 (N.D. 1974)
State v. Jackson, 503 S.W.2d 185 (Tenn. 1973)
Taylor v. State, 474 S.W.2d 207 (Tex. 1971)
U.S. v. Aurandt, 15 N.M. 292, 107 Pac. 1064.

Cases which apply this rule under the supremacy clause 
as to the jeopardy issue where the state law is different 
from that enunciated by the Supreme Court are as 
follows:

Ex parte Bornee, 85 S.E. 529 (W. Va.)
Booker v. Phillips, 418 F.2d 434 (Kan)
Klinefelter v. Superior Court, 502 P.2d 531 (Cal.) 
Baker v. State, 289 A.2d 348 (Md.)
Bernard v. State, 481 S.W.2d 427 (Tex.)
People v. Scott, 337 N.Y.S.2d 640 (N.Y.)
Smith v. State o f  Mississippi, 478 F.2d 88 (Miss.) 
McNeal v. Hollowell, 481 F.2d 1145
It is a fair and undeniable conclusion as a foundation 

for any discussion of the force and effect of jeopardy 
in the United States that the pronouncements of the 
Supreme Court of the United States are the supreme

80



15

law of the land and the state is bound thereby.7 The 
basic reason that the rule of jeopardy is applied when 
the jury is empanelled and sworn is because the 
Supreme Court has said so, and it is the supreme law of 
the land and the states cannot alter or modify the 
pronouncements of the Court. No educator or teacher, 
lawyer or judge is unaware of this rule of law. It has 
been the law since 1868, see U.S. v. Watson, 28 Fed. 
Cas. 499, and there is no misunderstanding as to the 
force and effect of this law and how it should be 
applied.

It is not merely a matter of dictum that has been 
placed in the cases in an offhand manner and not 
germane to the vitality of the rule. In that context, it is 
no historical accident and is simply a fundamental and 
basic rule of law. That is why it is constitutionally 
mandated.

A second and most persuasive point is raised by the 
questions presented in this case by the Court. The 
second question reads as follows:

“2. Should this Court hold that the Constitution 
does not require jeopardy to attach in any trial -  
state or federal, jury or nonjury -  until the first 
witness is sworn?”

It is perfectly obvious that the Supreme Court must 
decide when jeopardy attaches or the constitutional 
protection of jeopardy is void and a nullity. This simply

7 The language in Oregon v. Haas is interesting on this issue 
because it permits the state to be more liberal in giving and 
granting rights to the people. It must, however, observe minimum 
constitutional guarantees but it may provide more. See Oregon v. 
Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570.

81



16

means that the time when jeopardy attaches is an 
implicit part of the law of jeopardy. Even if by some 
subjective judgment the Court should reject the 
universal rule when jeopardy attaches and adopts a 
different rule for any reason, it must make that new 
rule part and parcel of the law of jeopardy. Logic 
compells us then to conclude that time when jeopardy 
attaches is a vital part of the rule of jeopardy and 
cannot be surgically snipped from the body without 
replacement in order to make the body of law 
functional. This is an obvious reason why the rule is 
constitutionally mandated.

2. Should the Rule of Jeopardy be Changed to 
State that it Applies Only When the First 
Witness is Sworn?

The Court, but its order, submitted the following 
question:

“2. Should this Court hold that the Constitution 
does not require jeopardy to attach in any trial — 
state or federal, jury or nonjury — until the first 
witness is sworn?”

This question focuses upon the rule of jeopardy and 
when jeopardy should attach. A research of the law in 
the Supreme Court of the United States, the text 
authorities, the decisions of the Federal Courts, and the 
decisions of the state courts find no support for this 
suggested change. As a matter of fact, the authority is 
clear, certain, unambiguous, and explicit that jeopardy 
attaches when the jury is empanelled and sworn.

82



17

No compelling necessity has been established by 
anyone that this proposed rule might aid society and 
the defendant in the fair administration of justice as we 
know it. No compelling reason has been advanced. No 
social or legal principles have been enunciated which 
compel consideration for the change. No assumptions 
have been made, and the prior rule of law is not based 
upon mere dictum, but this issue seems to be clearly 
bottomed on a determination of subjective judgments 
and not upon the law established since 1868.

It seems to be the sole criteria that could be used is 
simply that it doesn’t make any difference when 
jeopardy attaches and that barring some persuasive 
argument to the contrary and defendants carrying a 
heavier burden of proof on this point the rule will 
automatically be changed subjectively. In our view, this 
is a slender reed upon which to change constitutional 
rights. Justice Marshall, in his dissent to the Order 
dated December 5, 1977, speaks with authority on this 
matter. The powers of persuasion are placed upon the 
Montana prison official represented by the Attorney 
General for the State of Montana and the state court 
defendants with local Montana lawyers. To be knowl­
edgeable about the Supreme Court of the United States 
and its prespective even as to the predilections of each 
Justice of the Supreme Court is generally beyond our 
competence. We simply do not have the experience and 
to that extent cannot aid and assist the Court as 
vigorously as involved advocates.

The narrow focus, then, of this issue as we see it is 
simply the burden of each defendant to persuade the 
Court that a difference is significant.

83



18

One comment should be in order at this juncture. As 
Justice Renquist stated, there is a presumption of 
constitutionality by enactments of the state legislature. 
This presumption is well known. Yet, the basis for this 
presumption is well known. Yet, the basis for this 
presumption is that state legislators are sworn to uphold 
the Constitution and the pronouncements of the 
Supreme Court of the United States, as the supreme 
law of the land, and they are bound thereby. Thus, if a 
state legislature announces a rule different from the rule 
of the Supreme Court and its clear pronouncements, 
the basis for the presumption must necessarily fail. As 
an example of what we mean, if the state legislature 
made a rule that no appeal to the Supreme Court of 
the United States is possible for a resident of the State 
of Montana or that freedom of religion is abolished in 
Montana, no court would justify the rule simply on the 
basis of a presumption of constitutionality because the 
basis for that presumption has been destroyed. In our 
view, that makes sense.

Leaving aside considerations of need for change; 
leaving aside the clear pronouncements of courts 
everywhere; leaving aside educators and competent 
writers in the field and their views; and further leaving 
aside any stated need for change which enhances the 
administration of justice for the defendant and society 
not articulated by anyone, we come to the question of 
whether it makes a difference by changing the rule of 
jeopardy to apply only when the first witness is sworn. 
We believe it makes a substantial difference in the 
administration of justice.

The Supreme Court has recognized that jeopardy 
attaches when the jury is empanelled and sworn, thus

84



19

vesting the defendant with a valued right to have his 
trial completed before that tribunal and that jury. See 
Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 
974 and McNeal v. Hollowell, supra. In Cooley on 
Constitutional Limitations, 6th Ed., page 339, it is 
stated, “To place a man in jeopardy he must be in peril 
from the verdict of a particular jury”. This means that 
when the jury is empanelled and sworn the defendant 
has a “valued right” to that jury and is in peril 
henceforth and is entitled to a verdict from that 
particular jury. To take away that right in the 
administration of justice simply negates and deprives 
the defendant of that valued right. The rule as it now is 
is therefore based upon reason and logic and a principle 
that gives full and effective measure to his right to a 
trial by jury and to the rule of jeopardy.

Language that compels consideration by the Court is 
as follows:

“In a jury trial, the jury must have been charged
with a deliverance of the defendant on being
empanelled and sworn.”

We have, over the years, not recognized the full 
language used in this issue. All courts have simply 
stated that jeopardy attaches when the jury is 
empanelled and sworn. In reality, the full implication of 
that phrase is that the jury is charged with “de­
liverance” of the defendant. When the jury is so 
charged with such deliverance, then jeopardy attaches, 
and this, of course, is when they are empanelled and 
sworn. The defendant is “under the gun” when a jury

85



20

has been charged with his deliverance, and this, 
obviously, is when they are empanelled and sworn.8

CONCLUSION

The law of jeopardy is well defined and stated by 
decisions of the Supreme Court of the United States. It 
is the supreme law of the land and constitutionally 
must be followed by the states. They cannot modify, 
water down, or change such pronouncements.

The law of jeopardy is a fundamental part of our 
administration of justice, and when it attaches is an 
important part of the whole concept of jeopardy. When 
it attaches is not an assumption, but a stated judgment. 
When it attaches is not an historical accident or subject 
to intellectual surgery and excision as non-constitutional 
baggage. This is explicit by the questions presented by 
the Court. It logically follows that the rule that 
jeopardy attaches when the jury is empanelled and 
sworn is constitutionally mandated.

There is no demonstration of pressing need for 
change. There is no demonstration that either federal or 
state rights are implicated or that the delicate

8 See 17 Cal. Jurisprudence, page 423 and cases cited. 
“Jeopardy does not attach until a certain stage of the proceeding 
has been reached. In a jury trial, the jury must have been 
charged with the ‘deliverance’ of the defendant, on being duly 
impaneled and sworn, but it is not necessary for the accusatory 
pleadings to have been read to the jury, or for the defendant to 
have made his plea. In a trial by the court without a jury, 
jeopardy attaches when the trial has been ‘entered upon’, 
whether evidence has been received or not.”

86



21

relationship is involved, rather the supremacy clause of 
the United States Constitution is given its usual and 
obvious meaning. As a matter of logic, when a jury is 
charged with the deliverance of the defendant, the 
defendant is in jeopardy, and this is when they are 
empanelled and sworn and take their oath of office as a 
part of the administration of justice “to well and truly 
try this case and a true verdict render according to the 
evidence, so help me God”. To suggest any other rule 
or any other time or any other place without 
compelling reasons, in our view, is simply inappropriate. 
To abandon the law of precedent without demonstra­
tion that the rule has outlived its usefulness or that the 
rule is no longer viable and that, indeed, justice cries 
for a change, has not been demonstrated. The bottom 
line, again in our view, is simply that any change that 
could be made would be simply the subjective 
judgments of men and not of law. The administration 
of justice and the protection of constitutional rights as 
we know them does not admit of such a change.

Respectfully submitted,

CHARLES F. MOSES 
Moses, Tolliver & Wright 
The Terrace, Penthouse 
300 North 25th Street 
P.O. Box 2533 
Billings, Montana 59103

Counsel for Appellee Bretz

87



N o. 76-1200

J it flic j&tjrfma fljaart aj i h  W im td  plates
October T erm, 1977

R oger Crist, et al., appellants

v.
Merrel Cline and L. R. B retz

ON APP E AL PROM  T E E  UNITED S T A T E S  COURT OF A P P E A L S FOR  
TH E  N IN T H  C IRC U IT

BRIEF ON REARGUMENT FOR THE UNITED STATES AS 
AMICUS CURIAE

W A D E  H . M cCREE, Jr.,
Solicitor General, 

B E N J A M IN  B.. C IV IL E T T I,
A ssistant A ttorney General, 

F R A N K  H . EASTERBRO OK ,
D eputy Solicitor General,

A L A N  J. SOBOL,
A ttorney,

D epartment o f Justice, 
W ashington, D.C. 205S0.

89



I N D E X

Page

Introduction and summary of argum ent-— . -------------------  2
A rgum ent-------------------------------------------------------------------- 9

The rule th a t jeopardy attaches in a ju ry  tria l when the 
ju ry  is sworn is not required by the Constitution-----  9

A. The historical background of the Double Jeop­
ardy Clause demonstrates th a t jeopardy does 
not attach as a constitutional m atter when the 
ju ry  is sworn--------------------------------------------  9

B. A lthough the interests of a defendant in pro­
ceedings prior to the introduction of evidence 
are entitled to some protection, a constitu­
tional double jeopardy rule is not essential to 
protect them _____________________________  19

1. Motions and requests-------------------------- 20
2. Opening statements---------------------------  21
3. Ju ry  selection-----------------------------------  24

C onclusion------------------------------------------------------------------  29

CITATIONS

Cases:
Abney v. United States, 431 U.S. 651-------------------------  16
Adamson v. California, 332 U.S. 46---------------------------  2
Apodaca v. Oregon, 406 U.S. 404------------------------------  3
Bossing v. Cady, 208 U.S. 386-----------------------------------  16
Benton v. Maryland, 395 U.S. 784------------------------------  2
Breed's. Jones, 421 U.S. 519--------------------------------------  2,21
Brown v. Ohio, No. 75-6933, decided June 16,1977------- 2
Collins v. Loisel, 262 U.S. 426-----------------------------------  16
Downums. United States, 372 U.S. 734---------------------  3 ,6,17
Green v. United States, 355 U.S. 184---------------------- 7,12,17
H il. 7 Hen. IV , f. 39, pi. 2-----------------------------------------  10

in

91



II

Cases—continued page
Illinois v. Somerville, 410 U.S. 4.58-----------------------  2,18
Jejfers v. United States, No. 75-1805, decided June  16,

1977 ___________________________________________  15
J ohnson v. Louisiana, 406 U.S. 356----------------------------- 2
Keener v. United States, 195 U.S. 100-------------------  15,16
Lee v. United States, No. 76-5187, decided June  13,

1977 ___________________________________________  4,18
Logan v. United States, 144 U.S. 263-------------------------- 15
Lovato v. New Mexico, 242 U.S. 199------------------------  16
Palko v. Connecticut, 302 U.S. 319---------------------------  2
Regina v. Charleswoi'th, [1861] 1 B & S 460--------------- 10
Regina v. Robinson, [1975] Q.B. 508, [1975] 1 A l l

E.R . 360________________________________________  10
Reginas. Winsor, [1865] 10 Coxcrim . C as,276 (Q .B.),

[1866] 327 (Exch. C h .)__________________________  10
Serf ass v. United States, 420 U.S. 377_______ 3, 7,18,21, 24
Simmons v. United States, 142 U.S. 148---------------------  15
Thompson v. United States, 155 U.S. 271-------------------  15
Turner’s Case, 89 Eng. Rep. 158--------------------------------  10
United States v. Ball, 163 U.S. 662-------------------------- 15
United States v. Dinitz, 424 U.S. 600---------------------  4,16,22
United States v. Gilbert, 25 Fed. Cas. 1287-------------  14
United States v. Haskell, 26 Fed. Cas. 207------------------  13
United States v. Jenkins, 420 U.S. 358---------------------  24
United States v. Jom, 400 U.S. 470---------------------------  16,17
United States v. Martin Linen Supply Co., 430 U.S.

564 ___________________________________ ______15,17-18
United States v. Perez, 9 W heat. 579--------------------- 13
United States v. Scott, No. 76-1382, certiorari granted,

October 11,1977_________________________________  4
United States v. Watson, 28 Fed. Cas. 499____________ 17
United States v. Wilson, 420 U.S. 332----------------------  9
Vaux's Case, 4 Co. Rep. 44a---------------------------- --------  12
Wade v. Hv/nter, 336 U.S. 684_______________________ 7,16
Waller v. Florida, 397 U.S. 387_____________________ 2
Wardius v. Oregon, 412 U.S. 470------------------------  22
Williams v. Florida, 399 U.S. 78----------------------------  3

92



Constitutions and ru le :
U nited States C onstitution: pKg<)

F if th  Amendment____________________________6,10,12
Double Jeopardy Clause____________  'passim
Due Process Clause_________ __________5,8,23,28
Self-Incrim ination Clause______________  8

Sixth Amendment------------------------------------  8, 25, 26, 28
Fourteenth Amendment_______________________ 2

New H am pshire Constitution, P a r t  I , A rt. X V I_____  11
Fed. R. Crim. p. 12__________ _____________________  20

Miscellaneous:
A L I, Administration of the Criminal Law: Douhle

Jeopardy (1935)_________________________.______  18
A L I, Model Penal Code (P.O.D. 1962)______ ;______  19
A L I, Model Penal Code, Tent. D raft No. 5 (1956)____  19
1 Annals of Congress (1789)_____________________  12
Babcock, Voir Dire: Preserving uIts Wonderful

Power", 27 Stan. L. Rev. 545 (1975)______________ 27
4 Blackstone, Commentaries (1803 ed .)___________ 9,10 12
3 Coke, Institutes (6th ed. 1680)____________________ 10
Colonial Laws of Massachusetts (W hitmore ed. 1889)__ 11
1 E llio tt, Dehates on the Federal Constitution (1876)__ 11
2 E llio tt, Debates on the Federal Constitution (1876)_ 11
Friedland, Double Jeopardy (1969)__________________10,19
2 Hale, Pleas of the Crown (1847)__________________ 10
11 Halsbury',s Laws of England (4th ed. 1976)_____  10
2 Hawkins, Pleas of the Crown (6th ed. 1787)_______  10
4 Hawkins, Pleas of the Crown (1795 ed .)_________  10
K irk, “ Jeopardy” During the Period of the Year Boohs,

82 U. Pa. L. Rev. 602 (1934)____________________ 10
Schulhofer, Jeopardy and Mistrials, 125 U. Pa. L. Rev.

449 (1977)----------------------------------------------------------  26
Sigler, Double Jeopardy (1969)____________________ 12
Story, Commentaries on the Constitution (1833)_____  14
4 Thorpe, The Federal and State Constitutions

(1909) _____-------------    11
W einreb, Denial of Justice: Criminal Process in the

United States (1977)____________________________ 27
1 Wharton’s Criminal Law and Procedure (Anderson 

ed. 1957)_______________________________________  18

Ill

93



g n  I to  fljoitrt of ih U nited p is te s
October Term, 1977

No. 76-1200

R oger Crist, et al., appellants 
v.

Merrel Cline and L. R. B retz

ON A PPEAL FROM  T E E  UNITED S T A T E S  COURT OF A P P E A L S FOR  
TH E  N IN T H  C IRC U IT

BRIEF ON REARGUMENT FOR THE UNITED STATES AS 
AMICUS CURIAE

This supplemental brief on reargument is filed in 
response to the Court’s invitation of December 5, 
1977. On setting the case for reargument, the Court 
asked the parties and the United States to address 
the following questions:

1. Is the rule heretofore applied in the fed­
eral courts—that jeopardy attaches in jury 
trials when the jury is sworn—constitutionally 
mandated ?

2. Should this Court hold that the Constitu­
tion does not require jeopardy to attach in any 
trial—state or federal, jury or non jury—until 
the first witness is sworn?

(i)



2

IN TR O D U C T IO N  A N D  SU M M A R Y  OF A R G U M E N T

Implicit in the first question that the Court has 
asked the parties to address is the issue whether the 
rule applied to trials in federal courts under the Fifth 
Amendment also must be applied to trials in state 
courts under the Fourteenth Amendment.

The United States has no discrete interest in the 
resolution of this issue. The question whether States 
must follow the entire body of rules developed in 
federal cases—or whether, instead, they must follow 
only the most important of the constitutional rules— 
is a perplexing puzzle of federalism and constitutional 
construction that the Court has never resolved. See 
Benton v. Maryland, 395 U.S. 784 (double jeopardy 
protection applies in state trials), overruling Palko 
v. Connecticut, 302 U.S. 319. Compare Johnson v. 
Louisiana, 406 U.S. 356, 369-377 (Powell, J., con­
curring), with Adamson v. California, 332 U.S. 46, 
68-123 (Black, J., dissenting). We do not pursue it 
here except to observe that, although the Court has 
applied in state eases the same double jeopardy rules 
it applies in federal cases,1 it has never held that the

1 See, e.g., Brown v. Ohio, No. 75-6933, decided June 16, 1977 
(rule forbidding successive prosecutions for the same offense, and 
defining greater and lesser degrees of the same crime as the “same 
offense,” applies to  the States) ; Breed v. Jones, 421 U.S. 519 (rule 
forbidding successive juvenile and adult prosecutions for the same 
crime applies to the States) ; Illinois v. Somerville, 410 U.S. 458 
(rule th a t a tr ia l can be term inated over a defendant's objection 
only because of “manifest necessity” applies to the S ta te s ) ; Waller 
v. Florida, 397 U.S. 387 (m unicipality and S tate are not separate 
sovereigns for double jeopardy purposes); Benton v. Maryland, 
supra (rule forbidding retrial a fter acquittal by the jury  applies to 
the States).96



3

lesser double jeopardy rules—and the rule concerning 
the time for the attachment of jeopardy is surely 
among the least important—also apply to the States 
in exactly the same way that they apply to the United 
States.2

We approach the discussion of the federal rule—in 
effect, the second question posed by the Court— with 
some hesitancy. Downum v. United States, 372 U.S. 
734, stands for the proposition—neither argued in the 
briefs of the parties in that case nor examined in the 
opinion of the Court—that jeopardy attaches in a fed­
eral case at least as early as the swearing of the jury. 
On the other hand, consideration of the historical and 
policy underpinnings of this aspect of double jeop­
ardy jurisprudence supports the conclusion that the 
point of attachment of jeopardy should be placed later 
in the proceedings. We suggest, accordingly, that the 
rule applied in Downum could profitably be reex­
amined.

This examination should be conducted with aware­
ness of certain background considerations. I t is clear 
from Serfass v. United States, 420 U.S. 377, that un­
less jeopardy has attached once, a defendant cannot 
have a double jeopardy objection to further proceed­
ings. Accordingly, it will be of great utility to both 
courts and litigants to have a simple and uniform 
rule for identifying the precise point during a crimi­
nal case at which jeopardy attaches.

2 Cf. 'Williams v. Florida, 399 U.S. 78 (the number of jurors 
required in a ju ry  tria l is incidental to the purpose of the constitu­
tional rule; States need not use 12-person ju ries); Apodaca v. 
Oregon, 406 U.S. 1:04 (ju ry  unanim ity not required in state cases).

97



4

Although clarity is important, we doubt, however, 
that the location of the point selected for the attach­
ment of jeopardy should ultimately make much dif­
ference to the outcome in eases where proceedings are 
terminated at a stage as early as in the instant case. 
We have argued in recent eases for an approach to 
double jeopardy problems under which the location of 
the line separating “jeopardy” from “non-jeopardy” 
would be of relatively little importance. I t  would not, 
for example, matter in the class of cases in which the 
defendant asks for or does not object to the termi­
nation of an ongoing trial.3 And our memorandum 
on the initial argument in this case, like our brief 
in Lee v. United States, No. 76-5187, decided June 13, 
1977, argued that, even when the defendant objects 
to a termination after jeopardy has attached, the 
strength of his interest in receiving a final decision 
from the tribunal then sitting—and hence, the weight 
of the interest needed to justify overriding the de­
fendant’s preference to receive a final decision—de­
pends in part on the time when the termination

3 See Lee v. United States, No. 76-5187, decided June 13, 1977, 
and United States v. Dinitz, 124 U.S. 600. We have elaborated on 
this rule in our briefs and petitions in  United States v. Scott, No. 
76-1382, certiorari granted, October 11, 1977; Scmabria v. United 
States, No. 76-1040, argued November 8,1977; and United States 
v. Grosso, petition fo r w rit of certiorari pending, No. 76-1453. See 
also pages 9-19 of our memerondum on the initial argument of the 
present case.

98



5

takes place.4 The special interests protected by the 
Double Jeopardy Clause begin to diverge materially 
from the need for fundamental fairness protected by 
the Due Process Clause only as the trial moves for­
ward. Under our analysis, the termination of a trial 
at its beginning could be justified by even slight cause 
unless the defendant were prejudiced, but a ter­
mination of a trial that was close to verdict could 
be justified only by the most important reasons.

I f  the Court should agree with this approach, then 
the present rule that jeopardy attaches in jury trials 
when the jury is sworn may serve to recognize the 
defendant’s legitimate interests in the conduct of pro­
ceedings that occur before the first witness testifies at 
this trial (see pages 20-28, infra). These interests are 
entitled to some constitutional protection; whether 
that protection is afforded under the Due Process 
Clause or under the Double Jeopardy Clause would 
be a matter of slight moment if the Court were to 
agree with the interest balancing test we have 
advocated.

We stated at pages 6-7 of our memorandum on the 
initial argument of this case that “ [w]e do not seek 
to alter [the] rule [that jeopardy attaches when the 
jury is sworn], because defendants may have import­
ant interests in the process of jury selection itself 
that are deserving of” constitutional protection. We 
took this position in light of our view that due proc­

4 See Lee Br. 27-31; pages 7 n. 4 and 15-16 of our memorandum 
on the initial argument of this case.

99



6

ess and double jeopardy analysis should be quite simi­
lar during the period before evidence is introduced. 
But study of the question in response to the Court’s 
invitation to file a brief on reargument has convinced 
us that the rule of Downurn that jeopardy attaches 
when the jury is sworn is not part of the constitu­
tional protection against multiple trials. The Con­
stitution requires only that jeopardy attach at the 
beginning of trial, when the fact-finder begins to hear 
evidence and the defendant is, for the first time, 
exposed to a risk of conviction.

A

The Double Jeopardy Clause of the Fifth Amend­
ment was intended to embody in the Constitution the 
English (and colonial) pleas of former conviction and 
former acquittal. These pleas could not be made, and 
still cannot be made in England, unless the defendant 
was convicted or acquitted by a jury. When the jury 
was discharged without returning a verdict, there was 
no double jeopardy bar to further prosecution.

Early decisions by this Court, and by its Justices 
sitting on the circuit courts, followed the English 
rule. Until 1900, none of this Court’s cases stated that 
jeopardy attached before verdict, and not until 1963 
did the Court hold that a retrial was barred by the 
Double Jeopardy Clause in a case that had not gone 
to verdict at the first trial. See Downurn v. United 
States, supra.

I t  had become clear long before Downurn, however, 
that jeopardy attaches at some time prior to the re-

100



7

turn of the jury’s verdict. The Court recognized that 
a defendant has a “valued right to have his trial com­
pleted by the particular tribunal” (Wade v. Hunter, 
336 TI.S. 684, 689). The defendant’s interest in receiv­
ing a verdict if he wants one could not be protected 
adequately unless the constitutional protection of the 
Double Jeopardy Clause were available early in the 
trial. The Court therefore stated that “a defendant is 
placed in jeopardy once he is put to trial before a 
jury” {Green v. United States, 355 TT.S. 184, 188). 
We believe that this principle—implemented by a rule 
that the trial begins when the factfinder first receives 
evidence—stands on firm constitutional footing.

B

The Constitution does not, however, support a rule 
that jeopardy attaches at some earlier time. Three 
significant kinds of events usually precede the submis­
sion of evidence: motions and requests by the defend­
ant, the selection of the jury, and the opening state­
ments. None of these events implicates fundamental 
double jeopardy concerns.

1. The Court held in Serfass v. United States, 
supra, that the defendant’s interest in preserving 
favorable dispositions of motions is not protected by 
the Double Jeopardy Clause. Although hearings on 
motions, especially motions to suppress evidence, may 
be time-consuming, may involve the defendant’s en­
ergies to an extent as great as the trial on the merits 
and may as a practical matter be dispositive of the 
case, it is settled that the expenditure of money and

101



8

the engagement of emotions surrounding the con­
sideration of motions are of no double jeopardy 
concern.

2. Opening statements by defense counsel may tip 
the hand of the defense, but this concern is applicable 
in bench trials as well as in jury trial, and no court 
has held that jeopardy attaches in a bench trial until 
after the opening statements have been completed. 
The defendant’s interest in preventing the prosecutor 
from capitalizing unfairly on revelations during the 
opening statement is more a concern of the Due Proc­
ess and Self-Incrimination Claiises than of the Dou­
ble Jeopardy Clause.

3. Moreover, although the defendant has legitimate 
interests in the selection of the jurors who will sit in 
judgment on his conduct, these interests are most 
closely associated with the Sixth Amendment’s guar­
antee of a fair trial by an impartial jury. Trial courts 
are well placed to prevent prosecutorial misconduct 
that seeks to deprive a defendant of his legitimate 
interests, and the courts can design remedies adequate 
in individual cases to deter prosecutorial manipula­
tion. Prosecutorial overreaching is the rare case, and 
we doubt that the Constitution requires jeopardy to 
attach before evidence is taken simply so that courts 
can add double jeopardy analysis to the sanctions and 
safeguards already available under the Due Process 
Clause.

102



9

A R G U M E N T

T H E  R U L E  T H A T  JEO PARDY A T T A C H E S I N  A J U R Y  TRIAL  

W H E N  T H E  J U R Y  IS  SW O R N  IS  NO T REQUIRED B Y  T H E  

C O N ST IT U T IO N

A. T H E  HISTORICAL BACKGROUND OF T H E  DOUBLE JEOPARDY CLAUSE 
DEMONSTRATES T H A T JEOPARDY DOES NOT ATTACH AS A CONSTITU­
TIONAL M ATTER W H E N  T H E  JU R Y  IS SWORN

The starting point in understanding the meaning of 
the Double Jeopardy Clause is the English common 
law with which the Framers of the Constitution were 
familiar. United States v. Wilson, 420 TT.S. 332, 339- 
343. The common law recognized two pertinent pleas 
by a defendant: former conviction (autrefois convict) 
and former acquittal (autrefois acquit). Either plea 
was an absolute bar to a second trial, but unless a de­
fendant could make one of these pleas he had no de­
fense of former jeopardy.5

Each plea was based on a verdict or judgment. The 
termination of a trial short of judgment, as by dis­
missing the jury, could not be pleaded as a bar to 
another trial because it was neither a conviction nor 
an acquittal. This rule was recognized at the time

5 Autrefois attaint and pardon were thought of as related pleas. 
See 4 Blackstone, Commentaries *336-*337 (1803 ed.). B ut a 
pardon usually was based on a former verdict, and an attainder 
(although sometimes a legislative punishment) was not only the 
equivalent of a conviction but also resulted in corruption of blood 
and deprivation of all possessions, punishments that, in the ir 
nature, could be imposed only once.

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10

of the yearbooks0 and was acknowledged in seven­
teenth century law.6 7 I t was recited by Coke8 and 
Blackstone,9 discussed by H ale10 11 and Hawkins,11 and 
surely it was familiar in the Colonies. The rule was 
reiterated in England after the United States be­
came independent.12 * The law of England today is the 
same as it was in 1789, and “ [t]he fact that the jury 
was discharged without giving a verdict cannot be 
a bar to a subsequent indictment.” 1:1 Jeopardy “at­
tached” in England, then as now, only on the return 
of a verdict by the factfinder.

Nothing in the events leading to the adoption of the 
Double Jeopardy Clause of the Fifth Amendment in­
dicates that the Framers of that Amendment intended 
to do anything other than codify the English practice.

Only one pre-revolutionary colonial document men­
tioned double jeopardy. The Massachusetts Body of

6 Ilil. 7 Hen. IY , f. 39, pi. 2 (1409). See generally K irk, “Jeop- 
ardy''’ During the Period of the Year Books, 82 U. Pa. L. Rev. 
602 (1934).

7 Turner's Case, 89 Eng. Rep. 158 (1676).
8 3 Coke, Institutes 212-213 (6th ed. 1680).
9 4 Blackstone, Commentaries *335-*336 (1803 ed.)
10 2 Hale, Pleas of the Crown 241-242 (1847).
11 2 Hawkins, Pleas of the Crown 527 (6t,h ed. 1787) ; 4 Hawkins, 

Pleas of the Crown 312 (1795 ed.).
12 Regina v. Cha.rlesworth, [1861] 1 B & S 460 (in a misdemeanor 

case only the factfinder’s verdict is jeopardy, and only former 
conviction or former acquittal is a good plea) ; Regina v. Winsor, 
[1865] 10 Cox Crim. Cas. 276 (Q .B .), ,[1866] 327 (Exch. Ch.) 
(same in a felony tria l) .

1311 Ilalsbury's Laws of England ]] 242 (4th ed. 1976) (footnote 
om itted). See also Regina v. Robinson, [1975] Q.B. 508, [1975] 1 
A ll E.R. 360 (reaffirming Cha.rlesworth and Winsor) ; Friedland, 
Double Jeoyardy 21 (1969) (“The English position is th a t it  is 
w ithin the discretion of the tria l judge whether the ju ry  should 
be discharged, and th a t whether this discharge is proper or im­
proper the accused cannot complain when ho is tried  again”).



11

Liberties, a summary of rights composed by the Gov­
ernor and General Court of that colony in 1641, pro­
vided that “ [n]o man shall be twice sentenced by civil 
justice for one and the same crime, offence, or tres­
pass.” Colonial Laws of Massachusetts 42 (Whitmore 
ed. 1889). This provision made a former conviction, 
but not a former acquital, a bar to further pro­
ceedings.

With a solitary exception, the charters and consti­
tutions drawn up by the States after the Revolution 
did not contain double jeopardy provisions. The ex­
ception was New Hampshire; Part I, Art. XYI of 
its Constitution of 1784 provided that “ [n]o subject 
shall be liable to be tried, after an acquittal, for the 
same crime or offence.” 4 Thorpe, The Federal and 
State Constitutions 2455 (1909). This provision
adopted autrefois acquit but not autrefois convict.

Neither New Hampshire nor Massachusetts asked 
Congress to add a double jeopardy provision to the 
federal' Constitution. New York and some of the dele­
gates of Maryland sent to Congress, with their instru­
ments of ratification of the Constitution, suggestions 
for a double jeopardy provision, but neither indicated 
any dissatisfaction with the common law practice.” 14

14 New York suggested: “T hat no person ought to be put twice 
in jeopardy of life or limb, for one and the same offence; nor, unless 
in case of impeachment, be punished more than once for the same 
offence.” 1 Ellio tt, Debates on the Federal Constitution 328 (1876). 
The m ajority report of the M aryland delegates suggested: “That 
there shall be * * * no appeal from m atter of fact, or second trial 
after acqu itta l; but this provision shall not extend to such cases as 
may arise in the government of the land or naval forces.” 2 Elliott, 
supra, a t 550.

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12

Madison’s original draft for the Double Jeopardy 
Clause, like New York’s proposal, was modeled on 
Blackstone’s statement that, under English law, “no 
man is to be brought into jeopardy of his life, more 
than once, for the same offence.” 4 Blackstone, Com­
mentaries *335 (1803 ed.). Madison’s draft provided 
(1 Annals of Congress 434 (1789)): “No person shall 
be subject, except in cases of impeachment, to more 
than one punishment or one trial for the same 
offence * * He described this, with his other pro­
posals, as intended to codify the established principles 
of liberty (id. at 433-440).

The House of Representatives adopted Madison’s 
draft. The brief debate there indicates that the Mem­
bers of Congress wanted the amendment to express 
the established common law rule. 1 Annals of Con­
gress 753 (1789) ; Green v. United States, 355 U.S. 
184, 202 (Frankfurter, J., dissenting) ; Sigler, Double 
Jeopardy 30-31 (1969). The only objections to the 
proposal were made by those who thought that the 
amendment would change existing law; supporters of 
the amendment evidently thought that it would not.

The Senate, without recorded debate, changed Mad­
ison’s version to the language now found in the 
Amendment. I t  employed the general term “jeop­
ardy,” which was not present in Madison’s draft but 
was understood at the time to be a shorthand expres­
sion of the common law practice.15 The Senate’s lan- 16

16 See 4 Blackstone, C'ommemtaries *335 (1803 ed.). See also 
Venue's Case, 4 Co. Rep. 44a, 45a: “the life of a man shall not be 
twice put in jeopardy for one and the same offence, and th a t is the 
reason and cause th a t autrefois acquitted or convicted of the same 
offence is a good plea * * *.”

106



13

gnage was even closer to Blackstone’s description 
of the English rule than was Madison’s.

The early federal decisions adopted the common 
law position. This Court’s first double jeopardy case 
was United States v. Perez, 9 Wheat. 579 (1824). The 
trial court had discharged a jury because it was un­
able to agree, and Perez argued that he could not be 
tried a second time. This Court responded that trial 
courts “have the right to order the discharge” of a 
jury “whenever, in their opinion, taking all the cir­
cumstances into consideration, there is a manifest 
necessity for the act, or the ends of public justice 
would otherwise be defeated.” The Court concluded 
that the discharge was “no legal bar to a future 
trial. The prisoner has not been convicted or ac­
quitted, and may again be put upon his defense.” The 
Court did not inquire whether there was a need to 
declare a mistrial in Perez’s case, because the trial 
court had the authority to decide that question and, 
at all events, Perez had not been acquitted.

Just a few months before Perez was decided, Mr. 
Justice Washington, sitting on circuit, had expressed 
the view “that the jeopardy spoken of in this article 
can be interpreted to mean nothing short of the ac­
quittal or conviction of the prisoner, and the judg­
ment of the court thereupon. This was the meaning 
affixed to the expression by the common law * * *. 
* * * [The Double Jeopardy Clause] does not apply 
to a jeopardy short of conviction.” United States v. 
Haskell, 26 Fed. Cas. 207, 212 (C.C.E.D. Pa.) (No. 
15,321). He therefore dismissed as “absurd” (id. at

107



14

211) the defendant’s argument that he must be re­
leased if the discharge of the jury before verdict was 
improvident or unnecessary.

In 1834 Mr. Justice Story, the author of the Court’s 
opinion in Perez, disagreed with Haskell, but only to 
the extent of putting the constitutionally-significant 
jeopardy in the jury’s verdict rather than in the 
judgment of the court on the verdict. Mr. Justice 
Story concluded that, under the Double Jeopardy 
Clause, “no person shall be tried a second time for 
the same offence, where a verdict has been already 
given by a jury. The party tried is in a legal sense, 
as well as in a common sense, in jeopardy of his 
life, when a lawful jury have once had charge of his 
offence as a capital offence upon a good indictment, 
and have delivered themselves of the charge by a ver­
dict.” United States v. Gilbert, 25 Fed. Cas. 1287, 
1302 (C.C.D. Mass.) (No. 15,204). Mr. Justice Story’s 
scholarly writings took the same position.16

For 139 years after Perez this Court consistently 
found that the Double Jeopardy Clause permitted a 
retrial after a trial had terminated before the jury

16 See Story, Commentaries on the Constitution § 1787 (1833) : 
“The meaning of [the Double Jeopardy Clause] is, th a t a party  
shall not be tried  a second time for the same offence, after he has 
once been convicted or acquitted of the offence charged by the 
verdict of a jury  * * *. B u t i t  does not mean th a t he shall not be 
tried  for the offence a second time, if  the ju ry  shall have been 
discharged without giving a verd ict; * * * for in such a case, his 
life or limb cannot judicially be said to have been put in jeopardy.”

108



15

delivered a verdict.” The Court continued to state 
that it would interpret the Double Jeopardy Clause as 
adopting the common law practice. See, e.g., United 
States v. Ball, 163 U.S. 662. Nevertheless, changes in 
the rationales offered by courts for the double jeop­
ardy protection led to reconsideration of the rule that 
Mr. Justice Story espoused.

The process of trial is itself a hardship in criminal 
cases. The common law pleas of former conviction and 
former acquittal recognized this only incompletely: it 
was possible for a defendant to be tried repeatedly, 
and needlessly, so long as none of the trials ended in a 
verdict. Although the core policy of the Double Jeop­
ardy Clause always has been to preserve the finality 
of a verdict by the factfinder in favor of the accused 
(see, e.g., Kepner v. United States, 195 U.S. 100; 
United States v. Martin Linen Supply Co., 430 U.S. 
564), and to prevent double punishment when the ac­
cused has been convicted (see, e.g., Jeffers v. United 
States, No. 75-1805, decided June 16, 1977), the 
Clause is now understood to serve the ancillary pur­
pose of holding to a minimum the number of times a 17

17 See, e.g., Thompson v. United States, 155 U.S. 271 (ju ro r dis­
qualified because of participation on grand ju r y ) ; Logans. United 
States, 144 U.S. 263 (second tria l a fter ju ry  was unable to ag ree ); 
Simmons v. United States, 142 U.S. 148 (tria l term inated because 
im proper influence exerted on ju ry ). These and similar cases seem 
to indicate th a t a tria l court may excuse a jury  and hold another 
tria l if, in its discretion, it  deems th a t the best course.

109



16

defendant must be tried to yield a single good 
verdict.18

This Court has recognized, therefore, that a defend­
ant has a “valued right to have his trial completed by 
a particular tribunal” (Wade v. Hunter, 336 U.S. 
684, 689) and, in light of that right, an “option to go 
to the first jury and, perhaps, end the dispute then 
and there with an acquittal” (United States v. Jom, 
400 U.S. 470, 484 (plurality opinion)). In order to 
protect the defendant’s interest in receiving the ver­
dict of the first factfinder, it was neeesary to conclude 
that the protections of the Double Jeopardy Clause 
came into play prior to verdict. The Clause could not 
safeguard the defendant’s interest in receiving a ver­
dict if it did not apply until after there had been a 
verdict. The Court therefore concluded that jeopardy 
attached before the end of the trial, although for 
many decades it had no reason to consider when dur­
ing the trial the defendant’s interest in receiving a 
verdict had become sufficiently implicated to support a 
conclusion that jeopardy attached at that point.19

18 See, e.g., Abney v. United States, 431 U.S. 651, '659-663; United 
States v. Dinitz, 424 U.S. 600,606-608.

19 See, e.g., Kepner v. United States, supra, 195 U.S. a t 128 
(dictum) (jeopardy attached during t r i a l ) ; Bassing v. Cady, 208 
U.S. 386, 391-392 (arraignm ent and pleading are not jeopardy; 
implication tha t jeopardy begins with the tria l) ; Lovato v. New 
Mexico, 242 U.S. 199 (by implication) (the Court sustained the 
discharge of a ju ry  to perm it a second arraignm ent of the defend­
an t; the scrutiny of the discharge would have been unnecessary 
unless jeopardy “attached” when the ju ry  was impaneled) ; Collins 
v. Loisel, 262 U.S. 426, 429 (dictum) ; Wade v. Hunter, supra, 336 
U.S. at 688 (dictum) (“ [p ja s t cases have decided that a defendant,

110



17

Because the defendant has a constitutionally pro­
tected interest in receiving the verdict of a jury once 
trial has begun, we believe that the rule that jeopardy 
attaches when the defendant “is put to trial before a 
jury” (Green v. United States, supra, 355 U.S. at 
188) is of constitutional stature. But the identifica­
tion of the precise point at which that occurs has 
never received the attention of this Court.

In Downuni v. United States, 372 U.S. 734, a jury 
was selected and sworn, then dismissed when the 
prosecutor was unprepared to proceed on several 
of the charges. The Court held that the Double 
Jeopardy Clause barred a second trial because the 
prosecutor’s request for a mistrial on account of his 
impreparedness, which might have amounted to over­
reaching, was unjustified. This holding necessarily 
rested on the assumption—which the Court did not 
discuss—that double jeopardy protections became ap­
plicable on the swearing of the jury.20 Three cases 
have stated that this is the rule of Downum, but none 
has discussed the basis for that rule.21 United States

put to tria l before a jury, may be subjected to the kind of ‘jeop­
ardy’ th a t bars a second tria l for the same oifense even though his 
tria l is discontinued without a verdict” ) ; Green v. United States, 
supra, 355 U.S. a t 188 (dictum) (“a defendant is placed in  jeop­
ardy once he is pu t to tria l before a ju ry ”) ; United States v. Jorn, 
supra, 400 U.S. at 479 (“a defendant is placed in jeopardy in a 
criminal proceeding once the defendant is pu t to tria l before the 
trie r of the facts, whether the trie r be a ju ry  or a judge”).

20 The parties in Downum also apparently assumed th a t jeopardy 
attached when the ju ry  was sworn. Neither brief addressed the 
issue, and the lack of discussion of the point by the Court reflected 
the parties’ inattention to it.

21 The rule in Downum was presaged by United States v. Watson, 
28 Fed. Cas. 499 (S.D. N.Y.) (No. 16,651), which held tha t the

111



18

v. M artin Linen Supply Go., supra, 430 U.S. at 569; 
Serf ass v. United States, 420 U.S. 377, 388; Illinois 
v. Somerville, 410 U.S. 458, 467 (opinion of the 
Court), 471 (White, J., dissenting). The same cases 
state that jeopardy does not attach in a bench trial 
until the court begins to receive evidence. See also 
Lee v. United States, No. 76-5187, decided. June 13, 
1977, slip op. 4 n. 3.

The rule that jeopardy attaches at different times 
in bench trials and jury trials is difficult to justify 
as a matter of constitutional law. The defendant’s in­
terests in receiving a final verdict after a single trial 
are the same whether the factfinder is a judge or a 
jury. Moreover, the defendant’s interest in preserving 
any factual determinations that the factfinder might 
have made (or might be willing to make) in his favor, 
and in preventing the prosecutor from attempting to 
rescue a case that has begun to go badly, are not im­
Double Jeopardy Clause barred a retrial where the jury, after 
being sworn, was discharged w ithout hearing evidence when the 
prosecutor became ill. The district judge in Watson did not discuss 
Haskell, Gilbert, or the English authorities, and he gave no reason 
for selecting the swearing of the ju ry  as the time for the attach­
ment of jeopardy. The Watson rule proved to be, infectious, how­
ever; by 1935, when the American Law Institu te surveyed events, 
it had been adopted by several federal courts and by the m ajority 
of state courts. See A L I, Administration of the Criminal law: 
Double Jeopardy 66-71 (1935). The decisions collected by the 
A LI, too, stated no reasons. See also, e.g., 1 Wharton's Criminal 
Law and Procedure § 138 (Anderson ed. 1957) (“the authorities 
are not agreed” when jeopardy attaches, but “the better opinion is 
th a t jeopardy does not arise until a fter the ju ry  is properly im­
paneled * * *. This requires the swearing of the whole ju ry  * * * 
and not a part thereof” ).

112



19

plicated in either a bench trial or a jury trial until 
the factfinder has begun to receive evidence. The 
American Law Institute could find “no reason to per­
petuate the distinction” between bench and jury 
trials, and it recommended that no double jeopardy 
inquiry be undertaken unless evidence had been in­
troduced.22 We believe that, in light of the history of 
the Clause and the interests it protects, constitutional 
concerns are fully satisfied by a rule that jeopardy 
attaches when the factfinder begins to hear evidence 
at trial. We discuss the reasons for this conclusion at 
greater length in the remainder of this brief.

B. ALTHOUGH T H E  INTERESTS OF A DEFENDANT IN  PROCEEDINGS PRIOR 
TO T H E  INTRODUCTION OF EVIDENCE ARE ENTITLED TO SOME PROTEC­

TIO N , A CONSTITUTIONAL DOUBLE JEOPARDY RULE IS  NOT ESSENTIAL 
TO PROTECT TH E M

We start with the assumption that the protections 
of the Double Jeopardy Clause are implicated no 
later than the point at which the factfinder begins to 
hear evidence. The rule in bench trials is that jeop­
ardy attaches when evidence is introduced, and we 
believe it is untenable today, in light of the history set 
forth above, to suggest that any later point would be 
permissible.23

22 See A LI, Model Penal Code §1.08(4) (P.O.D 1962); A L I 
Model Penal Code, Tent. D raft No. 5, p. 53 (1956) See also Fried- 
land, supra, a t 29.

23 A ppellants apparently argue (Br. on Reargument 19) that 
jeopardy does not attach until the prosecution has introduced 
evidence sufficient to make out a primer, facie case of guilt. This 
approach would create great uncertainty and generate endless 
litigation, and for th a t reason it  would be undesirable. Moreover,

113



20

Three things ordinarily happen in a criminal case 
before the factfinder begins to receive evidence. The 
defendant may make, and the court may pass on, mo­
tions and requests. In the case of a jury trial, the 
parties and the court select a jury. And, in both 
bench and jury trials, the parties have the oppor­
tunity to make opening statements. The defendant 
may have important interests in all of these events. 
We doubt, however, that any of these legitimate inter­
ests is most appropriately protected under the Double 
Jeopardy Clause.

1. Motions and requests

In federal courts defendants may, and in some 
cases must, move before trial for certain rulings on 
the indictment and the evidence that will be presented 
at trial. See Fed. R. Crim. P. 12. A defendant has 
a legitimate interest in the proper disposition of these 
motions. Some motions may control the entire case; 
for example, a request to suppress evidence may be 
the defendant’s only hope to avoid conviction. In 
other cases the defendant may contend that the in­
dictment does not state an offense or that the undis­
puted evidence shows that he has committed no crime. 
Disposition of these motions may cut to the heart of 
the case; hearings on them may require lengthy prep­
under appellants’ reasoning, if  the prosecution went sufficiently 
poorly, jeopardy would not attach a t all and the prosecutor then 
would have an opportunity to do better a second time. We believe 
that- appellants’ arguments neglects the defendants’ legitimate 
interests in receiving a final verdict once a factfinder has begun to 
hear evidence.

114



21

aration and entail the time and emotional energies of 
the defendant and witnesses alike.

Yet the disposition of these motions does not iin- 
before the protections of the Double Jeopardy Clause 
This' Court held in Serf ass v. United States, 420 
U.S. 377, that a defendant must be subjected to trial 
before the protections of the Double Jeopardy Clause 
come into play, even though the district court, on his 
pretrial motion, has evaluated the evidence available 
to the prosecution and held it insufficient to support a 
conviction. The Court reasoned that in those circum­
stances the defendant never had been subjected to a 
risk of conviction and, consequently, that jeopardy 
did not attach to the disposition of his motion, despite 
the fact that the district court had resolved the is­
sue of his guilt or innocence. 420 U.S. at 387-392. See 
also Breed v. Jones, 421 U.S. 519, 528 (“Jeopardy 
denotes risk [of conviction]”). If  the disposition of a 
motion going to the general issue of guilt or inno­
cence does not implicate the protections of the Double 
Jeopardy Clause, it follows inexorably that the dis­
position of other notions does not do so. That a 
Court may pass on motions before the factfinder be­
gins to receive evidence therefore is not a reason why 
jeopardy should attach before that time.

2. Opening statements

The opening statements of counsel “state what evi­
dence will be presented, * * * make it easier for the 
jurors to understand what is to follow, and * * * re­

115



22

late parts of the evidence and testimony to the whole 
* * United States v. Dinitz, 424 U.S. 600, 612 
(Burger, C.J., concurring). The opening statement 
by defense counsel may summarize the position of the 
defense and thus tip its hand. The defendant has an 
interest in preventing the prosecutor, armed with 
knowledge of the defense, from aborting the proceed­
ings in order to obtain additional time to fortify his 
ease.

There is no reason to distinguish between bench and 
jury trials in this respect, however. The defendant’s 
interest is the same in both, yet in a bench trial 
jeopardy does not attach until after the opening state­
ments. If  the Double Jeopardy Clause protects a 
defendant’s interest in having the trial proceed forth­
with after his opening statement, then the time of 
attachment of jeopardy in bench trials must be 
moved, and the beginning of the defendant’s opening 
statement fixed as the time of the attachment of 
jeopardy.24

The concern about hand-tipping is more closely 
related, however, to self-incrimination and due proc­
ess concerns than to the purposes of the Double Jeo­
pardy Clause. Cf. Wardius v. Oregon, 412 U.S. 470. 
No one would argue, for example, that jeopardy 
attached if a defendant voluntarily revealed all of his 
defense strategy three weeks before trial. Moreover,

24 A  decision by this Court th a t jeopardy attaches when counsel 
for the defendant begins his opening statement would not assist 
appellees. The indictment was dismissed in this case before the 
opening statement of any party.

116



23

in Serfass the defendant’s motions and arguments re­
vealed the substance of his defense, yet the Court held 
that this did not amount to the attachment of jeo­
pardy. Nothing that the defendant reveals during the 
opening statement creates any risk of immediate con­
viction or requires the defendant to endure the pres­
entation of evidence; under the analysis of Serfass, 
therefore, the defendant’s opening statement cannot 
mark the initial point of jeopardy.25

We do not denigrate the defendant’s vital interest in 
preventing the prosecutor from capitalizing unfairly 
on what counsel may reveal during the opening state­
ment. But courts now deal with this problem under 
their supervisory powers and the Due Process Clause. 
If, immediately after the defendant’s opening state­
ment, the prosecutor should ask for an indefinite con­
tinuance to assemble additional evidence, the trial 
court should and presumably would scrutinize the re­
quest carefully to protect the defendant’s legitimate 
interests. The same scrutiny could and should be ap­
plied when a trial is proposed to be terminated after 
opening statements and before the presentation of evi­
dence. Because the court would ask the same questions 
to determine whether either a continuance or a termi­
nation would be proper, there is no reason why con­
tinuances should be scrutinized under the Due Process

25 A defendant may defer making his opening statement until 
after the government’s case has been completed. Deferral of the 
opening statement would be an effective strategy in any case in 
which the defendant was concerned about prem ature disclosure 
of evidence or strategy.

117



24

Clause and terminations under the Double Jeopardy 
Clause. Trial courts can avoid allowing prosecutors to 
gain an unfair advantage by designing remedies in 
any case in which it appears that the prosecutor is at­
tempting to overreach.

3. Jury selection

The only difference for present purposes between 
a bench trial and a jury trial is that, in the latter, the 
defendant may participate in the process of selecting 
the factfinders. This process of selection may be time- 
consuming, and the defendant may conclude that his 
efforts have produced an especially favorable panel 
that lie would prefer to have hear his case. Granting 
that the selection of the jury is an important step in 
a criminal case, we do not believe that it is an 
adequate reason to conclude that jeopardy attaches in 
a jury trial prior to the time that it attaches in a 
bench trial.20

The fact that a defendant may invest a great deal 
of time and effort in the process of selecting a jury 
does not, by itself, demonstrate that any double jeop­
ardy interest is implicated during or at the conclusion 
of jury selection. A defendant also may spend days in 
court during a hearing on a motion to suppress evi­
dence, yet defendants are not in jeopardy during sup­
pression hearings or hearings on other motions. Ser- 
fass v. United States, supra. *

2C Cf. United States v. Jenkins, 420 U.S. 358, 365 (“the Double 
Jeopardy Clause of the F if th  Amendment nowhere distinguishes 
between bench and jury  tria ls” ).

118



25

Moroever, the defendant’s interest in having his 
ease heard by the jurors selected during the voir dire, 
although important, is more closely related to Sixth 
Amendment concerns than to double jeopardy princi­
ples. An example may illustrate this. Because jeop­
ardy attaches no earlier than the swearing of the 
jury, if the prosecutor should deliberately poison the 
jury panel and cause its dismissal before a jury had 
been sworn, this would require the selection of a new 
panel and would deprive the defendant of his interest 
in retaining a panel that he thought favorable to him; 
yet, even under the holding of Downmn, the prose­
cutor’s misconduct would not be assessed under double 
jeopardy standards. The misconduct would, at most, 
implicate the defendant’s right under the Sixth 
Amendment to an impartial jury.

Indeed, only events after the attachment of jeop­
ardy are subjected to scrutiny under the Double Jeop­
ardy Clause. That a jury now may be selected and 
dismissed without the slightest double jeopardy scru­
tiny means that a rule providing that the attachment 
of jeopardy occurs when the jury is sworn could not 
be justified by the need to protect the defendant’s 
legitimate interests in jury selection.27

27 Sim ilarly, none of the defendant’s double jeopardy interests 
is implicated if  his case is reassigned from one judge to another, 
even though the defendant has waived a ju ry  tria l and firmly 
believes th a t the judge initially assigned to the case was favorably 
disposed to him. A defendant is entitled to  a fa ir factfinder but 
not to  one slanted in his favor, and the designation of one judge 
to be the factfinder would not amount to the attachment of 
jeopardy.

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26

Because the prevailing rule that jeopardy attaches 
when the jury is sworn does not protect the defend­
ant’s interest in jury selection procedures, one scholar 
has suggested that the time for attachment of jeopardy 
be advanced to the commencement of the voir dire.22 
I t  is not clear how such a rule could be administered; 
would it require jury selection to continue without 
abatement despite great difficulties in selecting a jury? 
But, practical problems aside, there is no historical 
support for such a rule, and it would not be responsive 
to this Court’s decision in Serfass that the jeopardy 
rules should protect only the interests an accused has 
in the process of the trial itself. Moreover, to the ex­
tent this rule depends on the defendant’s interest in 
preserving juries that are favorably disposed to him 
even before they have begun to receive evidence, it 
amounts to an argument that the Double Jeopardy 
Clause protects an interest in jury bias in favor of the 
defendant. Although the Sixth Amendment guarantees 
every defendant a fair jury, it does not guarantee any 
defendant a jury predisposed in his favor; there is 
no reason to recognize such an interest under the 
Double Jeopardy Clause when there is none under 
the Sixth Amendment.

We do not belittle the defendant’s legitimate in­
terests in the process of jury selection. He should not 
needlessly be required to participate in selecting two 
juries when one would do; he is entitled to protection 28

28 See Schulhofer, Jeopardy apd Mistrials, 125 U. Pa. L. Rev. 
449, 512-514 (1977). Appellee Cline also takes this position (Br. 
on Reargument 27-28).

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27

against prosecutorial overreaching that could deprive 
him of a fair jury or one he might believe to be favor­
able.29 The prosecutor is not entitled to two chances 
at selecting a jury favorably disposed to the prosecu­
tion. But the trial court can detect and control over­
reaching. I t  can frustrate attempts by the prosecutor 
to upset a jury that has been selected, and it can de­
sign remedies adequate to forestall prosecutorial ma­
neuvering. Overreaching surely is the rare case, and 
is especially unlikely to occur between the swearing

29 Compare Babcock, Voir Dire: Preserving “Its Wonderful 
Power”, 27 Stan. L. Rev. 545 (1975) (voir dire is im portant be­
cause the defendant’s perception of the fairness of the criminal 
process depends in p art on how courts deal w ith the selection of 
those who will pass on his g u ilt) , with Weinreb, Denial of Justice: 
Criminal Process in the United States (1977). Professor W einreb’s 
study of the criminal justice system, although concluding that 
defendants’ rights have been slighted in many respects, also con­
cludes tha t the common belief in the significance of voir dire is 
unfounded. He explains (id. at 94-95) : “ [T ]he most th a t the 
lawyers can do is rely on their rational or irrational hunches about 
persons concerning whom, even after extensive questioning, they 
know almost nothing. There is little  reason to believe tha t in most 
cases a ju ry  selected after an extensive voir dire is predictably 
‘better’ from any point of view than a group of twelve competent 
jurors selected at random.” Professor W einreb continues (id. at 
97) : “W hether one accepts the claims for the voir dire or believes, 
as I  do, th a t they are greatly exaggerated, it should be cut down. 
A t best i t  is a waste of time. A t worst it makes the determination 
of a person’s gu ilt depend in  appearance and in fact on irrele- 
vancies. In  the very selection of the persons who will decide 
whether the defendant is guilty, the voir dio'e introduces an ex­
plicitly tactical factor wholly unrelated to  guilt. W ere the voir 
dire strictly confined to  its purpose, the composition of a fair, 
reliable jury, and all techniques intended to prejudice the selection 
favorably to one side or the other eliminated, the entire process of 
selecting jurors could be accomplished w ithin a few minutes.”

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28

of the jury and the opening statements. I t  is not 
necessary to design the ordinary double jeopardy rules 
to accommodate the rare case in which the prosecutor 
might attempt to tamper with a defendant’s Sixth 
Amendment rights. We believe that the better course 
is to allow courts to formulate appropriate sanctions 
under the Due Process Clause for prosecutorial mis­
conduct concerning jury selection—misconduct of a 
sort that appellees have not alleged took place in this 
case.

We conclude, then, that constitutional jeopardy 
does not attach in a criminal case, jury or nonjury, 
until evidence has been introduced; only then does 
the defendant’s interest in the integrity and con­
tinuity of the factfinding process come into being. 
The defendant has a valued right to have his trial con­
cluded before the factfinder that begins to receive evi­
dence, and the existence of that right means that 
jeopardy must attach no later than the commence­
ment of the evidentiary presentation. But the defend­
ant’s interests before that point are not strongly 
related to double jeopardy concerns and are most ap­
propriately protected under a due process analysis.

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29

CONCLUSION

Because the first indictment in this case was dis­
missed before the introduction of any evidence, the 
court of appeals’ scrutiny of the dismissal under the 
Double Jeopardy Clause was improper.30 The judg­
ment of the court of appeals should be reversed.

Respectfully submitted.
W a d e  H .  M c C r e e , J r .,

Solicitor General.
B e n j a m i n  R. C iv il e t t i , 

Assistant A ttorney General.
T r a n k  H .  E a s t e r b r o o k ,

Deputy Solicitor General.
A l a n  J. S o b o l ,

Attorney.
J a n u a r y  1978.

30I'Ve continue to believe, for the reasons discussed in our 
memorandum on the initial argument of the case, tha t even if 
jeopardy attached when the ju ry  was sworn, the second tria l was 
proper. A ppellants explicitly abandoned their arguments in this 
regard, however, and declined to adopt those we made. We there­
fore believe th a t the time of the attachm ent of jeopardy is the 
single, controlling issue open for decision.

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