Crist v. Cline

• Decision Date: 05 December 1977
• Docket Number: No. 76-1200,76-1200
• Citation: 98 S.Ct. 603,54 L.Ed.2d 475,434 U.S. 980
• Parties: Roger CRIST, as Warden of the Montana State Penitentiary, Deer Lodge, Montana, et al. v. Merrel CLINE and L. R. Bretz
• Court: U.S. Supreme Court

434 U.S. 980

98 S.Ct. 603

54 L.Ed.2d 475

Roger CRIST, as Warden of the Montana State Penitentiary, Deer Lodge, Montana, et al.

v Merrel CLINE and L. R. Bretz

No. 76-1200

Supreme Court of the United States

December 5, 1977

ORDER

This case is restored to the calendar for reargument. Counsel are requested to brief and discuss during oral argument the following 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 Solicitor General is invited to file a brief expressing th views of the United States on each of these questions.

Mr. Justice MARSHALL, dissenting.

By its order restoring this case to the calendar for rebriefing and additional oral argument, the Court appears once again to be "reach[ing] out" for a vehicle to change a long line of precedent. See Pennsylvania v. Mimms, 434 U.S. 106, at 117, 98 S.Ct. 330, 54 L.Ed.2d 331, (STEVENS, J., dissenting). The Court asks the parties to discuss the rule to be applied in the federal courts with regard to attachment of jeopardy, a rule that is very well established.¹ But the parties here are Montana prison officials, represented by the Attorney General of Montana, and state-court defendants; they can hardly be considered knowledgeable about the federal courts. The Court attempts to surmount this difficulty by inviting the Solicitor General to provide the federal prosecutor's perspective on this important issue, yet it does not invite the other side, federal defendants or a representative of them, to submit a brief providing the opposing perspective.

In my view, the Court today does violence to two assumptions underlying Art. III of the Constitution: that we will not anticipate a question before it is necessary to decide it,² and that both sides of an issue will be vigorously represented by involved advocates.³ See generally Ashwander v. TVA, 297 U.S. 288, 346-348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). I dissent from the order restoring the case for reargument.

1 The current federal rule on attachment of jeopardy was applied in the federal courts as early as 1868. United States v. Watson, 28 F.Cas. 499 (No. 16,651) (S.D.N.Y.). Since Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), it has never been questioned in this Court that jeopardy attaches when the jury is sworn. See, e. g., Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); id., at 471, 93 S.Ct. 1066 (WHITE, J., dissenting); Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).

2 The problems involved in anticipating a question are illustrated by the form of the Court's order. The Court asks about only two possibilities—when the jury is sworn or when the first witness is sworn—along a continuum of moments in a trial...