437 U.S. 28, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978)
In 1974, Merrel Cline and L.R. Bretz faced charges in Montana state court for grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence.1 Following a three-day jury selection, a jury was empaneled and sworn.2 Before the first witness was sworn, the appellees filed a motion drawing attention to the allegation in the false-pretenses charge that the defendants' illegal conduct began on January 13, 1974.3 Effective January 1, 1974, Mont. Rev. Codes Ann. § 94-1805 (1947) had been repealed.4
The prosecutor moved to amend the information, claiming that the date was a typographical error and should have been 1973.5 The trial judge denied the motion to amend and dismissed the false-pretenses count.6 The State promptly but unsuccessfully asked the Montana Supreme Court for a writ of supervisory control ordering the trial judge to allow the amendment.7
Returning to the trial court, the prosecution asked the trial judge to dismiss the entire information so that a new one could be filed.8 That motion was granted, and the jury was dismissed.9 A new information was then filed, charging the appellees with grand larceny and obtaining money and property by false pretenses based on conduct commencing January 13, 1973.10
After a second jury had been selected and sworn, the appellees moved to dismiss the new information on double jeopardy grounds.11 The motion was denied, and the trial began.12 The appellees were found guilty on the false-pretenses count, and sentenced to terms of imprisonment.13 The federal habeas proceedings followed, leading to the Ninth Circuit's reversal.14
Whether the federal rule that jeopardy attaches in a jury trial when the jury is empaneled and sworn is constitutionally mandated?15
The Double Jeopardy Clause of the Fifth Amendment applies to the States through the Fourteenth Amendment.16 It requires that jeopardy attach in a jury trial when the jury is empaneled and sworn.17 This rule protects the defendant's valued right to have his trial completed by a particular tribunal and lies at the core of double jeopardy concerns, including finality of judgments and prevention of repeated prosecutorial attempts.18
Yes. The established facts show that in 1974 Merrel Cline and L.R. Bretz were brought to trial in Montana state court on charges of grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence.19 Following a three-day selection process, a jury was empaneled and sworn. Before the first witness was sworn, the appellees filed a motion drawing attention to the allegation in the false-pretenses charge that the defendants' illegal conduct began on January 13, 1974.
The prosecutor moved to amend the information, claiming that the date was a typographical error and should have been 1973. The trial judge denied the motion to amend and dismissed the false-pretenses count. The State promptly but unsuccessfully asked the Montana Supreme Court for a writ of supervisory control ordering the trial judge to allow the amendment.
Returning to the trial court, the prosecution asked the trial judge to dismiss the entire information so that a new one could be filed. That motion was granted, and the jury was dismissed. A new information was then filed, charging the appellees with grand larceny and obtaining money and property by false pretenses based on conduct commencing January 13, 1973.
After a second jury had been selected and sworn, the appellees moved to dismiss the new information on double jeopardy grounds. The motion was denied, and the trial began. The appellees were found guilty on the false-pretenses count, and sentenced to terms of imprisonment. The federal habeas proceedings followed, leading to the Ninth Circuit's reversal. The federal rule is not arbitrary line-drawing but reflects and protects the interest in retaining a chosen jury, rendering Montana's contrary statute impermissible under the Fourteenth Amendment.20
The federal rule is constitutionally mandated and binding on Montana.21
Related opinions on this issue
Justice Blackmun joined the Court's opinion but wrote separately to emphasize additional interests that support attaching jeopardy at the swearing of the jury.22 These interests include repetitive stress and anxiety upon the defendant, continuing embarrassment for him, and the possibility of prosecutorial overreaching in the opening statement.23 He explained that each of these interests could support an argument that jeopardy attaches at some point before the jury is sworn.24
Blackmun would bring all these interests into focus at the point where the jury is sworn.25 It is then and there that the defendant's interest in the jury reaches its highest plateau.26 The opportunity for prosecutorial overreaching thereafter increases substantially.27 Stress and possible embarrassment for the defendant from then on is sustained.28
Chief Justice Burger dissented, arguing that as a rulemaking matter the result reached by the Court is a reasonable one.29 He rejected the decision to constitutionalize the rule so as to bind the States.30 Burger explained that this is but another example of how constitutional guarantees are trivialized by the insistence on mechanical uniformity between state and federal practice.
There is no reason why the state and federal rules must be the same.31 In the period between the swearing of the jury and the swearing of the first witness, the concerns underlying the constitutional guarantee against double jeopardy are simply not threatened in any meaningful sense.32 This holds even on the least sanguine of assumptions about prosecutorial behavior.33 He cautioned that the Court should be cautious about constitutionalizing every procedural device found useful in federal courts, thereby foreclosing the States from experimentation with different approaches which are equally compatible with constitutional principles.34
Joined by Chief Justice Burger And Justice Rehnquist
Justice Powell dissented, contending that the rule that jeopardy attaches in a jury trial at the moment the jury is sworn is not mandated by the Constitution.35 It is the product of historical accident, embodied in a Court decision without the slightest consideration of the policies it purports to serve.36 Powell argued that these policies would be served equally well by a rule fixing the attachment of jeopardy at the swearing of the first witness, and he would uphold the Montana statute.37
Even if one assumed that the Fifth Amendment now requires the attachment of jeopardy at the swearing of the jury, he would view that rule as incidental to the purpose of the Double Jeopardy Clause.38 Hence it is not incorporated through the Due Process Clause of the Fourteenth Amendment and not applicable to the States.39
Whether the Constitution requires that jeopardy attach in any trial until the first witness is sworn?40
The Constitution does not require that jeopardy attach in any trial until the first witness is sworn.41 In jury trials the attachment occurs when the jury is empaneled and sworn to protect the defendant's interest in the chosen jury.42 In nonjury trials it attaches when the court begins to hear evidence.43
No. The established facts demonstrate that the first jury was empaneled and sworn before dismissal without any witnesses having testified.44 Yet under the federal rule jeopardy attached at empaneling and barred the second prosecution after the new information was filed.45 Attaching jeopardy only when the first witness is sworn would fail to protect the valued right to a particular tribunal in jury trials.46 It would create an arbitrary distinction unsupported by the core policies of the Double Jeopardy Clause.47
The Constitution does not require that jeopardy attach in any trial until the first witness is sworn.