Crist v. Bretz

Decision Date14 June 1978
Docket NumberNo. 76-1200,76-1200
Citation98 S.Ct. 2156,437 U.S. 28,57 L.Ed.2d 24
PartiesRoger CRIST, as Warden of the Montana State Penitentiary, Deer Lodge, Montana, et al., Appellants, v. L. R. BRETZ et al
CourtU.S. Supreme Court

The federal rule that jeopardy attaches in a jury trial when the jury is empaneled and sworn, a rule that reflects and protects the defendant's interest in retaining a chosen jury, is an integral part of the Fifth Amendment guarantee against double jeopardy made applicable to the States by the Fourteenth Amendment. Hence, a Montana statute providing that jeopardy does not attach until the first witness is sworn cannot constitutionally be applied in a jury trial. Pp. 32-38.

546 F.2d 1336, affirmed.

Robert S. Keller, Kalispell, Mont., for appellants.

W. William Leaphart, Helena, Mont., for appellee Merrel Cline.

Charles F. Moses, Billings, Mont., for appellee L. R. Bretz.

Kenneth S. Geller, Washington, D. C., for United States, amicus curiae.

Mr. Justice STEWART delivered the opinion of the Court.

This case involves an aspect of the constitutional guarantee against being twice put in jeopardy. The precise issue is whether the federal rule governing the time when jeopardy attaches 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.1


The appellees, Merrel Cline 2 and L. R. Bretz, were brought to trial in a Montana court on charges of grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence. A jury was empaneled and sworn following a three-day selection process. Before the first witness was sworn, however, 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, the particular statute relied on in that count of the information, Mont.Rev.Codes Ann. § 94-1805 (1947), had been repealed. The prosecutor moved to amend the information, claiming that "1974" was a typographical error, and that the date on which the defendants' alleged violation of the statute had commenced was actually January 13, 1973, the same date alleged in the grand larceny count. The trial judge denied the prosecutor's motion to amend the information 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 then 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. Both charges were based on conduct commencing January 13, 1973. Other than the change in dates, the new false-pretenses charge described essentially the same offense charged in the earlier defective count.

After a second jury had been selected and sworn, the appellees moved to dismiss the new information, claiming that the Double Jeopardy Clauses of the United States and Montana Constitutions barred a second prosecution. 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 Montana Supreme Court, which had previously denied appellees habeas corpus relief, State ex rel. Bretz v. Sheriff, 167 Mont. 363, 539 P.2d 1191, affirmed the judgment as to Bretz on the ground that under state law jeopardy had not attached in the first trial. State v. Cline, Mont., 555 P.2d 724.

In the meantime, the appellees had brought a habeas corpus proceeding in a Federal District Court, again alleging that their convictions had been unconstitutionally obtained because the second trial violated the Fifth and Fourteenth Amendments guarantee against double jeopardy. The federal court denied the petition, holding that the Montana statute providing that jeopardy does not attach until the first witness is sworn does not violate the United States Constitution. The court held in the alternative that even if jeopardy had attached, a second prosecution was justified, as manifest necessity supported the first dismissal. Cunningham v. District Court, 406 F.Supp. 430 (Mont.).4

The Court of Appeals for the Ninth Circuit reversed. 546 F.2d 1336. It held that the federal rule governing the time when jeopardy attaches is an integral part of the constitutional guarantee, and thus is binding upon the States under the Fourteenth Amendment. The appellate court further held that there had been no manifest necessity for the Montana trial judge's dismissal of the defective c unt, and, accordingly, that a second prosecution was not constitutionally permissible.5

Appellants appealed pursuant to 28 U.S.C. § 1254(2), seeking review only of the holding of the Court of Appeals that Montana is constitutionally required to recognize that, for purposes of the constitutional guarantee against double jeopardy, jeopardy attaches in a criminal trial when the jury is empaneled and sworn. We postponed consideration of probable jurisdiction sub nom. Crist v. Cline, 430 U.S. 982, 98 S.Ct. 1676, 52 L.Ed.2d 376, and the case was argued. Thereafter the case was set for reargument, 434 U.S. 980, 98 S.Ct. 603, 54 L.Ed.2d 475, and the parties were asked to address the following two questions:

"1. Is the rule heretofore applied in the federal courts that jeopardy attaches in jury trials when the jury is sworn constitutionally mandated?

"2. Should this Court hold that the Constitution does not require jeopardy to attach in any trial—state or federal, jury or nonjury—until the first witness is sworn?"


The unstated premise of the questions posed on reargument is that if the rule "that jeopardy attaches in jury trials when the jury is sworn" is "constitutionally mandated," then that rule is binding on Montana, since "the double jeopardy prohibition of the Fifth Amendment . . . [applies] to the States through the Fourteenth Amendment," and "the same constitutional standards" must apply equally in federal and state courts. Benton v. Maryland, 395 U.S. 784, 794-795, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707. The single dispositive question, therefore, is whether the federal rule is an integral part of the constitutional guarantee.

The Double Jeopardy Clause of the Fifth Amendment is stated in brief compass: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." But this deceptively plain language has given rise to problems both subtle and complex, problems illustrated by no less than eight cases argued here this very Term.6 This case, however, presents a single straightforward issue concerning the point during a jury trial when a defendant is deemed to have been put in jeopardy, for only if that point has once been reached does any subsequent prosecution of the defendant bring the guarantee against double jeopardy even potentially into play. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265; Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425.

The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed then, as it does now,7 the relatively simple rule that a defendant has but put in jeopardy only when there has been a conviction or an acquittal—after a complete trial.8 A primary purpose served by such a rule is akin to that served by the doctrines of res judicata and collateral estoppel—to preserve the finality of judgments.9 And it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was considered to be equally limited in scope. As Mr. Justice Story explained:

"[The Double Jeopardy Clause] does not mean, that [a person] shall not be tried for the offence a second time, if the jury shall have been discharged without giving any verdict; . . . for, in such a case, his life or limb cannot judicially be said to have been put in jeopardy." 3 J. Story, Commentaries on the Constitution § 1781, pp. 659-660 (1833).

But this constitutional understanding was not destined to endure. Beginning with this Court's decision in United iStates v. Perez, 9 Wheat. 579, 6 L.Ed. 165, it became firmly established by the end of the 19th century that a defendant could be put in jeopardy even in a prosecution that did not culminate in a conviction or an acquittal, and this concept has been long established as an integral part of double jeopardy jurisprudence.10 Thus in Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974, the Court was able accurately to say: "Past cases have decided that a defendant, put to trial before a jury, may be subjected to the kind of 'jeopardy' that bars a second trial for the same offense even though his trial is discontinued without a verdict." See also, e. g., Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717.

The basic reason for holding that a defendant is put in jeopardy even though the criminal proceeding against him terminates before verdict was perhaps best stated in Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199:

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

Although it has thus long been established that...

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