The federal rule as to when jeopardy attaches in a jury trial is not only a settled part of federal constitutional law. It is a rule that both reflects and protects the defendant's interest in retaining a chosen jury. The United States Supreme Court cannot hold that this rule, so grounded, is only at the periphery of double jeopardy concerns. Those concerns -- the finality of judgments, the minimization of harassing exposure to the harrowing experience of a criminal trial, and the valued right to continue with the chosen jury -- have combined to produce the federal law that in a jury trial jeopardy attaches when the jury is empaneled and sworn. The time when jeopardy attaches in a jury trial serves as the lynchpin for all double jeopardy jurisprudence. The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.
In a Montana criminal trial, after the jury was empaneled and sworn, but before any witnesses were sworn, the trial court granted a prosecution motion to dismiss the information. A second information, not containing the error for which the first information had been dismissed, was then filed, and after a second jury had been selected and sworn, the defendants moved to dismiss the new information, claiming that the double jeopardy clauses of the United States and Montana Constitutions barred a second prosecution. The motion was denied, and while the case proceeded to trial, the Supreme Court of Montana denied habeas corpus relief on the ground that under a Montana statute providing that jeopardy does not attach until the first witness is sworn, jeopardy had not attached in the first trial. After the defendants were convicted in the second trial, they brought a habeas corpus proceeding in the United States District Court for the District of Montana, alleging that their convictions had been unconstitutionally obtained because the second trial violated the guarantee against double jeopardy under the Fifth and Fourteenth Amendments. The District Court denied the petition. On appeal, the United States Court of Appeals for the Ninth Circuit reversed, holding that the federal rule that jeopardy attached when the jury was empaneled was an integral part of the constitutional guarantee, and thus was binding on the states under the Fourteenth Amendment.
In a case involving the double jeopardy prohibition of the Fifth Amendment, was the federal rule governing the time when jeopardy attaches in a jury trial binding on Montana through the Fourteenth Amendment?
The Supreme Court of the United States affirmed the appellate court's decision, finding that the federal rule -- that jeopardy attached when a jury was empaneled and sworn -- was an integral part of the constitutional guarantee against double jeopardy. According to the Court, double jeopardy concerns of finality of judgments and the valued right to continue with a chosen jury combined to produce the federal rule concerning double jeopardy attachment. The Court agreed with the appellate court that the time when jeopardy attaches in a jury trial serves as the lynchpin for all double jeopardy jurisprudence. Because the federal rule was an integral part of the constitutional guarantee of double jeopardy, the Court held that Montana's rule of attachment -- which provided that jeopardy does not attach until the first witness is sworn -- was impermissible under the Fourteenth Amendment. Accordingly, the Court concluded that the second information was barred by double jeopardy.