Also known as: jeopardy attach · jeopardy attached · jeopardy attaching · double jeopardy attaches · attachment of jeopardy
Written by attorneys · grounded in primary & secondary sources — see below
The point in a criminal proceeding at which the Double Jeopardy Clause begins to protect a defendant from retrial for the same offense. In a jury trial the protection begins when the jury is empaneled and sworn. In a bench trial the protection begins when the first witness is sworn. Attachment for a lesser included offense also bars later prosecution for a greater offense arising from the same conduct.
Jada Jones was convicted of joyriding after a jury trial. Prosecutors later charged her with auto theft based on the identical taking of the vehicle. Because the greater offense requires no additional proof beyond the lesser plus one element, the prior attachment of jeopardy bars the second prosecution.
Jerome Jackson's jury was empaneled and sworn in a larceny case. The judge then dismissed the charges before any evidence was presented. Jeopardy had already attached, so the state cannot retry Jackson on the same offense.
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Jasmine Jordan was convicted and sentenced. After a successful appeal she faced retrial and received a longer sentence. The original attachment of jeopardy does not bar the retrial but requires the court to justify the increased punishment with objective reasons appearing on the record.
Jonathan Jaffe pleaded guilty under an agreement requiring his testimony. After he refused to testify the state reinstated the original charges. The breach allowed reinstatement because the defendant had not yet performed the promised cooperation that would have kept jeopardy attached to the plea.
Jeopardy attaches when the jury is empaneled and sworn. This bright-line rule applies even if the government never presents an opening statement or calls a single witness.
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Yes. Attachment for the lesser included offense bars later prosecution for the greater offense arising from the same conduct because the greater offense requires no proof beyond the lesser plus additional elements.
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Jeopardy attaches when the first witness is sworn. This marks the point at which the defendant faces the risk of conviction.
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…or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches." Downum v. United States , 372 U.S. 734, 736. And finally, it prevents the State, following conviction , from retrying the defendant again in the hope of securing a greater penalty.…