When Does Jeopardy Attach?
Recently I was discussing the law of when jeopardy attaches with some colleagues. When jeopardy attaches is important (among other reasons) because once jeopardy attaches, if the prosecution decides to drop the case, subsequent prosecution for that offense is barred by the Fifth Amendment.
When does jeopardy attach for the purposes of the Fifth Amendment? At first blush, the answer would appear to be clear. But a closer look reveals otherwise.
Under Crist v. Bretz, the general rule is that jeopardy attaches when a jury is empaneled and sworn.
Texas courts tend to follow the Supreme Court on this. See, e.g. Ex parte Fierro, 79 S.W.3d 54 (Tex. Crim. App. 2002); Harvey v. State, 367 S.W.3d 513, 515 (Tex. App. 2012). But a problem arises when a jury is empaneled, released for a few days, and then sworn in on the actual day of the trial, as sometimes happens.
The question is whether jeopardy attaches when the jury is empaneled, or only after it is sworn in on the actual day of trial.
Initially, it would appear that the answer should be the latter. The language in Bretz is conjunctive, suggesting that for jeopardy to attach, the jury must be not only empaneled, but also sworn in. Yet a closer look at Bretz suggests that this conclusion would be incorrect.
According to Bretz, the interest being protected by the attachment of jeopardy at this point in the case and not later is “the need to protect the interest of an accused in retaining a chosen jury.” Bretz and its progeny speak of empaneling and swearing in the jury, but appear to operate under the presumption that these are contemporaneous events. If the jury is empaneled but not sworn in, and the rule is that jeopardy does not attach, there is nothing the defendant can do to retain his chosen jury. The prosecution could see what the composition of the jury was after both sides exercised their strikes, dismiss the case, reinitiate the proceedings, empanel another jury, and so on, until the prosecution finally empaneled a jury it was happy with. The only way to prevent this from happening, and therefore to protect the defendant’s protected interest in retaining his chosen jury, is for jeopardy to attach once the jury in empaneled. Otherwise, the prosecution would in effect have a super-preemptive strike, and one it could exercise as many times as it pleased.
Thus, the conclusion must be that jeopardy attaches when the jury is empaneled, not when the jury is sworn in.
The consequences of this question go beyond the basic concerns of double jeopardy. To take just one example, if a jeopardy has attached, and the case is subsequently dismissed, that dismissal functions as an adjudication of innocence, which means that the defendant’s record must be expunged no later than 30 days after the acquittal if expunction is requested.
The practice of empaneling juries one day and swearing them in on another day also once again illustrates the pervasiveness of presumption in the law, a topic I have written about on a number of occasions (for example, here). We must always be aware of the presumptions hiding just behind otherwise unequivocal legal commands, whether they come from courts or legislatures.
Patrick Luff is a highly respected attorney with over 25 years of experience in the practice of law. He specializes in areas such as business litigation, real estate, and trust and estates planning. Patrick is dedicated to providing quality legal services to his clients and is committed to finding practical and successful solutions to their legal issues. He is a respected member of the legal community and is committed to upholding the highest standards of professionalism.
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