Also known as: jury empaneled and sworn · empaneled and sworn jury · jury sworn · empanelment complete · double jeopardy attaches
Written by attorneys · grounded in primary & secondary sources — see below
The procedural moment in a jury trial at which double jeopardy protection attaches under the Fifth Amendment. From this point forward the defendant is generally protected against retrial for the same offense unless the proceeding terminates in a manner consistent with double jeopardy principles.
Jeffrey Jha faced fraud charges in state court. After the jury was empaneled and sworn, the prosecution's main witness fell ill and the judge discharged the panel over Jeffrey's objection. When the state later attempted to retry him before a new jury, the court dismissed the second prosecution because the constitutional protection had already taken hold at the swearing of the first jury.
Jamal Jefferson stood trial on hacking charges. Prospective jurors were questioned and seated, but the judge declared a mistrial over Jamal's objection before administering the oath because a key witness failed to appear. The state then refiled the charges. Because the jury had never been sworn, the court permitted the second trial without violating double jeopardy.
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Jeopardy attaches when the jury is empaneled and sworn. This moment triggers the defendant's protection against retrial for the same offense.
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Yes. Once the jury is empaneled and sworn, the defendant is in jeopardy even if no evidence has been taken. A subsequent retrial is barred absent manifest necessity or the defendant's consent.
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Jeopardy does not attach. The state may retry the defendant because the formal swearing step that triggers protection never occurred.
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No. After the jury is empaneled and sworn, a mistrial granted at the prosecution's request without manifest necessity bars retrial. Surprise or a desire for additional preparation does not qualify as manifest necessity.
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…in a jury trial is binding on Montana through the Fourteenth Amendment. The federal rule is that jeopardy attaches when the jury is empaneled and sworn; a Montana statute provides that jeopardy does not attach until the first witness is sworn.[^maj-1] I The appellees, Merrel Cline[^maj-2] and L. R. Bretz, were brought to trial in a…