united-states criminal-law double-jeopardy
When is a trial considered to have happened vis-a-vis double jeopardy?
<p>When is a trial considered to have happened vis-a-vis double jeopardy? In other words, at one point is a person considered to be tried for an offense and cannot be tried again? At the arraignment or at the judgement?</p>

<p>To be more specific, if a person has been arraigned, can the prosecutor abandon the case and then indict the person again later for the same offense, or are they considered to be tried after the arraignment occurs.</p>

<p>If the double jeopardy only becomes effective when a judgement is rendered, then a prosecutor can theoretically start a trial, abandon it, then try the person again, abandon it again, and so on indefinitely. Is that how it is?</p>

<p>Jeopardy can attach at one of two different points:</p>
<ul>
<li>In a trial to a jury, jeopardy attaches when a jury is empaneled and sworn in. <a href="https://supreme.justia.com/cases/federal/us/572/13-5967/" rel="nofollow noreferrer"><em>Martinez v. Illinois</em>, 134 S. Ct. 2070, 2074 (2014)</a> (&quot;There are few if any rules of criminal procedure clearer than the rule that 'jeopardy attaches when the jury is empaneled and sworn.'”)</li>
<li>In a bench trial, jeopardy attaches when the prosecution begins questioning its first witness. <a href="https://supreme.justia.com/cases/federal/us/420/377/" rel="nofollow noreferrer"><em>Serfass v. United States</em>, 420 U.S. 377, 388 (1975)</a> (&quot;In a nonjury trial, jeopardy attaches when the court begins to hear evidence.&quot;)</li>
</ul>
<p>But the Double Jeopardy clause is not absolute. It bars a retrial after a conviction or an acquittal, but it does not bar a retrial after most mistrials. <a href="https://supreme.justia.com/cases/federal/us/420/332/case.html" rel="nofollow noreferrer"><em>United States v. Wilson</em>, 420 U.S. 332, 344 (1975)</a> (&quot;[T]he Court has granted the Government the right to retry a defendant after a mistrial only where ‘there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.’&quot;)</p>
<p>The clearest exception to the mistrial exception, though, is that a new trial is not allowed where the prosecution acts in bad faith to provoke a mistrial.  <a href="https://supreme.justia.com/cases/federal/us/424/600/" rel="nofollow noreferrer"><em>United States v. Dinitz</em>, 424 U.S. 600, 611 (1976)</a> (&quot;The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.&quot;) This would prevent the perpetual retrial situation you discussed. I don't think the Speedy Trial clause would have that effect, as the time for a Speedy Trial typically resets after a mistrial is declared.</p>

<p>For the purpose of the <a href="https://en.wikipedia.org/wiki/Double_Jeopardy_Clause" rel="nofollow noreferrer">Double Jeopardy Clause</a> in the <a href="https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">Fifth Amendment</a> to the United States Constitution, jeopardy ‘attaches’ after arraignment, when the defendant is “put to trial before the trier of the facts.” See <em><a href="https://supreme.justia.com/cases/federal/us/420/377/case.html" rel="nofollow noreferrer">Serfass v. United States</a></em>, 420 U.S. 377 (1975), at 388:</p>

<blockquote>
  <p>As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of “attachment of jeopardy.” In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. In a nonjury trial, jeopardy attaches when the court begins to hear evidence. The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is “put to trial before the trier of the facts, whether the trier be a jury or a judge.”</p>
</blockquote>

<p>That doesn’t mean that “a prosecutor can theoretically start a trial, abandon it, then try the person again, abandon it again, and so on indefinitely.” Even if the trial was repeatedly aborted before the jury was empaneled, the prosecutor’s conduct would eventually result in a violation of the <a href="https://en.wikipedia.org/wiki/Speedy_Trial_Clause" rel="nofollow noreferrer">Speedy Trial Clause</a> of the <a href="https://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">Sixth Amendment</a>.</p>
