crist bretz argued november decided june federal rule jeopardy attaches jury trial jury empaneled sworn rule reflects protects defendant interest retaining chosen jury integral part fifth amendment guarantee double jeopardy made applicable fourteenth amendment hence montana statute providing jeopardy attach first witness sworn constitutionally applied jury trial pp affirmed stewart delivered opinion brennan white marshall blackmun stevens joined blackmun filed concurring opinion post burger filed dissenting opinion post powell filed dissenting opinion burger rehnquist joined post robert keller special assistant attorney general montana reargued cause appellants briefs michael greely attorney general william leaphart appointment reargued cause filed briefs appellee cline charles moses reargued cause filed briefs appellee bretz kenneth geller argued cause reargument amicus curiae urging reversal brief solicitor general mccree assistant attorney general civiletti deputy solicitor general easterbrook alan sobol justice stewart delivered opinion case involves aspect constitutional guarantee twice put jeopardy precise issue whether federal rule governing time jeopardy attaches jury trial binding montana fourteenth amendment federal rule jeopardy attaches jury empaneled sworn montana statute provides jeopardy attach first witness sworn appellees merrel cline bretz brought trial montana charges grand larceny obtaining money property false pretenses several counts preparing offering false evidence jury empaneled sworn following selection process first witness sworn however appellees filed motion drawing attention allegation charge defendants illegal conduct began january effective january particular statute relied count information mont rev codes ann repealed prosecutor moved amend information claiming typographical error date defendants alleged violation statute commenced actually january date alleged grand larceny count trial judge denied prosecutor motion amend information dismissed count state promptly unsuccessfully asked montana writ supervisory control ordering trial judge allow amendment returning trial prosecution asked trial judge dismiss entire information new one filed motion granted jury dismissed new information filed charging appellees grand larceny obtaining money property false pretenses charges based conduct commencing january change dates new charge described essentially offense charged earlier defective count second jury selected sworn appellees moved dismiss new information claiming double jeopardy clauses montana constitutions barred second prosecution motion denied trial began appellees found guilty count sentenced terms imprisonment montana previously denied appellees habeas corpus relief state ex rel bretz sheriff mont affirmed judgment bretz ground state law jeopardy attached first trial state cline mont meantime appellees brought habeas corpus proceeding federal district alleging convictions unconstitutionally obtained second trial violated fifth fourteenth amendment guarantee double jeopardy federal denied petition holding montana statute providing jeopardy attach first witness sworn violate constitution held alternative even jeopardy attached second prosecution justified manifest necessity supported first dismissal cunningham district supp appeals ninth circuit reversed held federal rule governing time jeopardy attaches integral part constitutional guarantee thus binding upon fourteenth amendment appellate held manifest necessity montana trial judge dismissal defective count accordingly second prosecution constitutionally permissible appellants appealed pursuant seeking review holding appeals montana constitutionally required recognize purposes constitutional guarantee double jeopardy jeopardy attaches criminal trial jury empaneled sworn postponed consideration probable jurisdiction sub nom crist cline case argued thereafter case set reargument parties asked address following two questions rule heretofore applied federal courts jeopardy attaches jury trials jury sworn constitutionally mandated hold constitution require jeopardy attach trial state federal jury nonjury first witness sworn ii unstated premise questions posed reargument rule jeopardy attaches jury trials jury sworn constitutionally mandated rule binding montana since double jeopardy prohibition fifth amendment applies fourteenth amendment constitutional standards must apply equally federal state courts benton maryland single dispositive question therefore whether federal rule integral part constitutional guarantee double jeopardy clause fifth amendment stated brief compass shall person subject offence twice put jeopardy life limb deceptively plain language given rise problems subtle complex problems illustrated less eight cases argued term case however presents single straightforward issue concerning point jury trial defendant deemed put jeopardy point reached subsequent prosecution defendant bring guarantee double jeopardy even potentially play serfass illinois somerville fifth amendment guarantee double jeopardy derived english common law followed relatively simple rule defendant put jeopardy conviction acquittal complete trial primary purpose served rule akin served doctrines res judicata collateral estoppel preserve finality judgments clear early years national history constitutional guarantee double jeopardy considered equally limited scope justice story explained double jeopardy clause mean person shall tried offence second time jury shall discharged without giving verdict case life limb judicially said put jeopardy story commentaries constitution pp basic reason holding defendant put jeopardy even though criminal proceeding terminates verdict perhaps best stated green underlying idea one deeply ingrained least system jurisprudence state resources power allowed make repeated attempts convict individual alleged offense thereby subjecting embarrassment expense ordeal compelling live continuing state anxiety insecurity well enhancing possibility even though innocent may found guilty reason holding jeopardy attaches jury empaneled sworn lies need protect interest accused retaining chosen jury interest described wade hunter supra defendant valued right trial completed particular tribunal interest roots deep historic development trial jury system criminal justice throughout history ran strong tradition banded together jury discharged completed solemn task announcing verdict regardless historic origin however defendant valued right trial completed particular tribunal within protection constitutional guarantee double jeopardy since right lies foundation federal rule jeopardy attaches jury empaneled sworn martin linen supply supra serfass supra illinois somerville jorn plurality opinion follows montana view jeopardy attaches impermissible fourteenth amendment unless said federal rule core double jeopardy clause see pointer texas malloy hogan ker california asking us hold appellants argue federal standard arbitrarily chosen rule convenience similar lack constitutional status federal requirement unanimous verdict jurors held bind apodaca oregon williams florida see ballew georgia rule jeopardy attaches jury sworn simply arbitrary exercise linedrawing argument might well persuasive might reasonably concluded jeopardy constitutionally attach first witness sworn provide consistency jury nonjury trials indeed might concluded point attachment jeopardy moved steps forward backward without constitutional significance federal rule jeopardy attaches jury trial settled part federal constitutional law rule reflects protects defendant interest retaining chosen jury hold rule grounded periphery double jeopardy concerns concerns finality judgments minimization harassing exposure harrowing experience criminal trial valued right continue chosen jury combined produce federal law jury trial jeopardy attaches jury empaneled sworn agree appeals time jeopardy attaches jury trial serves lynchpin double jeopardy jurisprudence illinois somerville supra case involving application double jeopardy clause fourteenth amendment said jeopardy attached first jury selected sworn today explicitly hold somerville assumed federal rule jeopardy attaches jury empaneled sworn integral part constitutional guarantee double jeopardy judgment affirmed footnotes prosecution based upon transaction former prosecution barred former prosecution following circumstances former prosecution improperly terminated except provided subsection improper termination prosecution termination reasons amounting acquittal takes place first witness sworn verdict informed argument conviction merrel cline reversed see state cline mont charges dismissed appeal therefore become moot motion asked prosecution evidence limited time period alleged information cunningham case involving issue consolidated appellees case appellants specifically waived challenge appeals ruling manifest necessity intimate view correctness addition present case see arizona washington wheeler burks ante greene massey ante sanabria post swisher brady scott post halsbury laws england ed established least turner case eng rule embodied defensive pleas former conviction former acquittal although pleas mention jeopardy blackstone commented based universal maxim man brought jeopardy life offence blackstone commentaries see generally sigler double jeopardy see mayers yarbrough bis vexari new trials successive prosecutions harv rev see also friedland double jeopardy ali administration criminal law double jeopardy perhaps first expression concept state concluded jeopardy may attach prior verdict wide different verdict given jeopardy verdict commonwealth cook serg perez case trial judge discharged deadlocked jury defendant argued discharge bar second trial case long understood standing proposition jeopardy attached first trial despite former jeopardy second trial barred double jeopardy clause manifest necessity discharge first jury see tateo wade hunter fact close reading short opinion case support view purporting decide constitutional question simply settling problem arising administration federal criminal justice cast new light perez late date academic interest two cases decided wake perez simply followed precedential authority simmons thompson become clear least time kepner decided jeopardy attach even trial culminate jury verdict person jeopardy regularly charged crime tribunal properly organized competent try undoubtedly jurisdictions trial one accused crime jury verdict acquittal conviction must jury legal jeopardy attach jury called charged deliverance accused see also dinitz wilson gori see kepner supra supra trial juries first merely substitute inscrutable methods decisionmaking trial battle compurgation ordeal see holdsworth history english law ed see also plucknett concise history common law ed soon evolved however rational instrument decisionmaking serving representative group peers sit judgment defendant guilt illustrative tradition practice keeping jury together unfed without drink delivered unanimous verdict see trin hen vii pl see plucknett supra lord coke put matter jury sworn charged case life member discharged give verdict coke institutes ed english said late rule seems command confinement jury till death agree avoid consequence exception introduced practice blackstone described words except case evident necessity winsor queen amicus curiae makes similar argument nonjury trials jeopardy attach first witness sworn serfass alternatively proposes due process sliding interest balancing test trial proceeded justification required midtrial termination montana alternatively proposes jeopardy held attach prima facie case made premise defendant truly jeopardy legal literature provides least one approach jeopardy attach soon process selecting jury begins see schulhofer jeopardy mistrials rev justice blackmun concurring although join opinion write emphasize fact content rest result seems ante solely defendant valued right trial completed particular tribunal factor mentioned justice black speaking wade hunter approach also support conclusion jeopardy attaches beginning jury selection process see schulhofer jeopardy mistrials rev interests involved well repetitive stress anxiety upon defendant continuing embarrassment possibility prosecutorial overreaching opening statement perhaps true interests used support argument jeopardy attaches point jury sworn bring interests focus however point jury sworn defendant interest jury reaches highest plateau opportunity prosecutorial overreaching thereafter increases substantially stress possible embarrassment defendant sustained chief justice burger dissenting rulemaking matter result reached reasonable one decision constitutionalize rule jeopardy attaches point jury sworn bind reject another example constitutional guarantees trivialized insistence mechanical uniformity state federal practice course reason state federal rules must period swearing jury swearing first witness concerns underlying constitutional guarantee double jeopardy simply threatened meaningful sense even least sanguine assumptions prosecutorial behavior cautious constitutionalizing every procedural device found useful federal courts thereby foreclosing experimentation different approaches equally compatible constitutional principles things good desirable mandated constitution remain free procedures attuned special problems criminal justice system state local levels principles federalism readily compromised sake uniformity finding sustenance perhaps considerations convenience certainly constitution countless times past years extolled virtues allowing serve laboratories experiment procedures differ followed federal courts yet continue press procrustean federal mold holding produce great mischief continues repeat business trivializing constitution matters better left accordingly join justice powell dissent justice powell chief justice justice rehnquist join dissenting rule jeopardy attaches jury trial moment jury sworn mandated constitution product historical accident embodied decision without slightest consideration policies purports serve policies served equally well rule fixing attachment jeopardy swearing first witness uphold montana statute even one assumed fifth amendment requires attachment jeopardy swearing jury view rule incidental purpose double jeopardy clause hence incorporated due process clause fourteenth amendment applicable therefore dissent correctly observes ante clear early years national history constitutional guarantee double jeopardy restricted cases complete trial culminating acquittal conviction limited debate double jeopardy clause house representatives confirms proposition annals cong see generally wilson consonant prevailing english practice regarding pleas bar pleas autrefois acquit autrefois convict implemented maxim repeated blackstone man twice placed jeopardy offense interposed basis actual verdict acquittal conviction pleas bar embody res judicata policy describes ante double jeopardy clause directed see haskell cas cc washington people goodwin johns sup cf people olcott johns cas sup kent remains english rule see supra existed separate rule english practice become intertwined doctrine pleas bar development double jeopardy clause rule based upon dictum lord coke ury retorned sworn verdict must heard discharged coke institutes ed accord rule arose aspect jury practice rather element guarantee double jeopardy supported several facts first applied civil cases well criminal kirk jeopardy period year books rev second early cases treaties laid clear standard effect failure follow rule see germain doctor student dialogue ch third seems never pleaded successfully bar second prosecution period year books rule said arisen kirk supra fourth blackstone dealt rule governing discharge jury section pleas bar discussion dealing verdicts compare blackstone commentaries hence reasonably clear rule forbidding discharge jury arose circumstances medieval england jurors counties facts occurred summoned give testimony westminster trial based facts seems invariable rule never found connection cases english common law problem two trials offense kirk supra omitted notwithstanding origin aspect jury practice rule discharge jury became useful defense crown oppression century reaction tyrannical practice queen charlesworth eng discharging juries permitting reindictment acquittal appeared likely strong judges declared capital cases juror withdrawn though parties consent criminal cases capital juror may withdrawn parties consent otherwise king perkins holt eng whether strict rule ever stringently applied modified soon announced king kinloch fost eng event seems never furnished basis plea autrefois acquit rather viewed matter committed discretion trial judge writ error lie plea bar future prosecution allowed queen winsor cox queen charlesworth supra eng thus english judges adapted lord coke rule protection interests later recognized country within sphere double jeopardy clause compare queen winsor supra green refused import rule realm pleas bar latter informed framing double jeopardy clause rule jury practice rule well might come regard aspect due process absorbed country double jeopardy clause concerned perez wheat sitting perez justice washington one year earlier written jeopardy spoken fifth amendment interpreted mean nothing short acquittal conviction prisoner judgment thereupon haskell justice story authored opinion perez nine years later explain treatise constitution meaning double jeopardy clause party shall tried second time offence convicted acquitted offence charged verdict jury judgment passed thereon story commentaries constitution seems unlikely either members perez thought decision interpreting fifth amendment declared discharge jury verdict grounds manifest necessity bar retrial justices washington story believed double jeopardy clause embraced actual acquittal conviction must viewed perez involving independent rule barring needless discharges jury decisions throughout early centuries dealing discharges jury ambiguous read merely reaffirming principle perez discharges verdict may justified manifest necessity without adding fifth amendment gloss throughout century however many state courts began blend rule needless discharges juries guarantee double jeopardy contained federal state constitutions recognized discharge rule provided significant protection twice vexed right trial jury little value citizen criminal prosecution guarantee double jeopardy violated accused left without remedy judge arbitrarily discharge impanel juries one obtained render verdict state demands attorney prosecution desires protection oppression new trial may ordered trying last resort value boasted right commonwealth century development state courts defendant valued right trial completed particular tribunal appeared decisions first time also without analysis element double jeopardy clause wade hunter policies underlying valued right spelled wade rationale expressed green supra case involving midtrial discharge jury appears echo state courts century earlier state resources power allowed make repeated attempts convict individual alleged offense thereby subjecting embarrassment expense ordeal compelling live continuing state anxiety insecurity well enhancing possibility even though innocent may found guilty accepted almost without articulated thought doctrine double jeopardy clause protects needless discharge jury proceeded adopt similar lack reason analysis implementing rule jeopardy attaches jury sworn downum trial declared mistrial jury sworn witnesses called finding absence imperious necessity held fifth amendment barred reprosecution downum opinion contains discussion point jeopardy attachment policies underlying selection swearing jury determinative moment nevertheless swearing jury accepted since downum constitutional line demarcation attachment jeopardy see illinois somerville sisson even though case presented contest issue following lead state courts simply enlisted doctrine concerning needless discharge juries service double jeopardy principles largely without analysis apparently little awareness history view however consistency federal courts assumed without question swearing jury triggers jeopardy accept established supervisory rule within federal system acceptance supervisory rule primarily grounds long tenure convenience justification elevating constitutional doctrine hesitant constitutionalize rule derives support framers understanding english practice double jeopardy clause derived supported doctrinal reasoning reaches constitutional dimension restraint doubly indicated respect rule since applied jury trials criminal case tried jeopardy attach begins hear evidence serfass compelling reason suggested today earlier decisions time jeopardy attaches different depending upon whether defendant valued right asserted jury trial rather bench trial turn next examination jury trial rule light double jeopardy policies belatedly thought advance ii three aspects criminal process ordinarily precede initial introduction evidence jury trial motions jury selection opening statements defendants vitally interested yet far clear trigger attachment jeopardy defendants may sometimes must see fed rule crim proc move various rulings indictment admissibility evidence trial motions practical terms may decide defendant case sometimes may require devotion time energies resources exceeding necessary trial yet never held jeopardy attaches making deciding pretrial motions see serfass supra appellee contend otherwise clear central concern double jeopardy clause regarded solely protecting repeated expenditures defendant efforts resources opening statements may made bench jury trials either type trial statements counsel questions may prompt prosecutor abort dismissing indictment otherwise proceedings view reindicting defendant commencing anew prosecutor also may simply request continuance gain time meet unexpected defense stratagem although motion rarely prevail event delay postponement occasioned result phase trial equally adverse defendant without regard whether tried jury due process clause protect defendant either case prosecutorial abuse thus respect phase criminal trial appears difference substance jury bench trials terms serving double jeopardy policies situation differ respects jury selected defendant voir dire challenges participates selection factfinder unusual process entail major effort extend protracted period case pretrial motions expenditure effort alone sufficient trigger attachment jeopardy federal rule attachment jury trials offers basis double jeopardy claim prosecutor dissatisfied jury selection process successful dismissing prosecution last juror seated indeed whole panel sworn defendant protection denial abuse rights respect lies due process clause moreover double jeopardy clause viewed guarantee defendant claim factfinder perceived favorably inclined toward cause interest bar pretrial reassignment case one judge another even though may waived jury trial belief original judge viewed case favorably thus double jeopardy clause interest trial completed particular tribunal wade hunter must refer interest retaining factfinder thought disposed favorably toward defendant one event distinguish one factfinder another eyes law general double jeopardy clause particular beginning factfinder work stated green defendant placed jeopardy put trial factfinder emphasis added jury undertaken constitutional duty hearing evidence trial quite clearly way prosecution case begun unfold trier fact cf scott post testimony commences evidence alleged criminal conduct presented factfinder becomes matter public record defendant public embarrassment anxiety begin point retrial mean repeating painful embarrassing testimony together possibility earlier trial run strengthen prosecution case retrial example prosecution witnesses may better prepared rigors thus defendant strong interest taking case first jury witnesses testify carsey app leventhal concurring rationale double jeopardy clause implicated threshold crossed crucial time double jeopardy clause purposes evident attachment rule bench trials judge embarked upon factfinding mission defendant justified concluding ordeal begun hands judge may expect matter proceed finish principle apply jury trials thus montana rule fixing attachment jeopardy swearing first witness consonant central concerns double jeopardy clause furnishes clear line demarcation attachment jeopardy places line advance point real jeopardy fifth amendment terms said begin iii even conclude fifth amendment merely virtue long unreasoned acceptance required attachment jeopardy swearing jury hold fourteenth amendment necessarily imposes requirement upon issue turn answer question whether jeopardy attachment point fundamental guarantees double jeopardy clause apodaca oregon powell concurring judgment ludwig massachusetts powell concurring previous discussion makes clear jury trial rule accorded constitutional status today implicates rights identified fundamental constitutional sense basis incorporating fourteenth amendment see duncan louisiana harlan dissenting iv aside paying cryptic homage hitherto unexplained valued right particular jury even attempt justify holding fifth amendment mandates rule attachment adopts identifies policy double jeopardy clause interests fair system criminal justice elevate right constitutional status rule even linedrawing finds support logic significant convenience perceive reason impose effect supervisory rule practice upon courts every state union blackstone commentaries see also coke institutes ed archbold pleading evidence practice criminal cases ed interestingly blackstone wrote jury discharged soon sworn evidence introduced blackstone commentaries relatively recent edition blackstone compiled earliest editions indicates close evidence may point rule discharge jury originally fixed authority ehrlich ehrlich blackstone hale pleas crown stokes ingersoll ed infamous ireland case tr five defendants accused high treason permitted jury deliberate three defendants instructed jury evidence whitebread fenwick sufficient convict even though full satisfy private conscience therefore discharged jury two declaring convenient already proved stay proof may come ibid reindicted convicted executed whitebread case tr despite pleas former jeopardy conway lynch queen ir irish queen bench review writ error prisoners convictions reindictment holding trial judge failed state record condition necessity prompted discharge first jury abuse discretion preventing subsequent trial english queen bench however rejected view charlesworth winsor indeed adopted view justice crampton dissented conway lynch see also coolidge cas cc mass story despite view clearly expressed justice story commentaries evidence year following publication beginning consider rule discharge jury embodying double jeopardy concerns see gilbert cas cc mass perez concerned pleas bar therefore double jeopardy clause supported recognition doctrine manifest necessity necessity example discovery incontrovertible evidence previously acquitted person guilty sufficed overcome valid plea bar necessity went propriety discharging jury see bigelow recognizes perez probably viewed double jeopardy case ante simmons logan thompson dreyer illinois lovato new mexico see also morris cas cc mass curtis see keerl montana cf kepner see also shoemaker cas cc watson cas sdny see state garrigues semble commonwealth cook serg state bailey mahala state state roe morgan state ind people webb cal nolan state teat state miss ex parte maxwell mitchell state ohio state ward ark people gardner commonwealth hart mass state paterno la ann mcdonald state state sommers dulin lillard see people goodwin johns sup commonwealth wade mass hoffman state md bigelow state van ness american treatises also included rule discharge jury heading double jeopardy see bigelow estoppel ed bishop commentaries criminal law ed cooley constitutional limitations ed see generally ali administration criminal law commentary pp leading english criminal law treatise contrary see chitty criminal law perkins ed see state supra morgan state supra state redman iowa people webb supra nolan state supra state davis mitchell state supra state ward supra people gardner supra state paterno supra mcdonald state supra state sommers supra dulin lillard supra accord bishop supra cooley supra see bigelow supra similarly today explore reasons supporting valuation particular right merely announcing valued ante government downum conceded jeopardy attaches time jury sworn brief support concession government cited lovato new mexico apparently believing lovato involved discharge jury immediately swearing case however witnesses sides sworn actually furnished support concession since parties dispute point jeopardy attachment discuss matter rule attachment put issue discussed downum owe sub silentio determination less deference holding arrived full argument consideration see monell new york city dept social services powell concurring particularly constitutional case serfass petitioner sought point attachment moved forward filing pretrial motions refusal fix attachment jeopardy stage litigation require consideration policies underlying rule assumed downum reaffirmed today apparently defense counsel often choose reserve opening statements close prosecution case tr oral arg brief reargument amicus curiae course followed early disclosure defense strategy least one commentator proposed fixing jeopardy attachment start voir dire order protect defendant interest juror selected schulhofer jeopardy mistrials rev proposal however historical foundation clear grounding concerns double jeopardy clause