| Crist v. Bretz
(No. 76-1200)
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| Syllabus
| Opinion
[ Stewart ] | Concurrence
[ Blackmun ] | Dissent
[ Burger ] | Dissent
[ Powell ] |
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Crist v. Bretz
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.
The rule that jeopardy attaches in a jury trial at the moment the jury is sworn is not mandated by the Constitution. It is the product of historical accident, embodied in a Court decision without the slightest consideration of the policies it purports to serve. Because these policies would be served equally well by a rule fixing the attachment of jeopardy at the swearing of the first witness, I would uphold the Montana statute. Even if one assumed that the Fifth Amendment now requires the attachment of jeopardy at the swearing of the jury, I would view that rule as incidental to the purpose of the Double Jeopardy Clause, and hence not incorporated through the Due Process Clause of the Fourteenth Amendment, and not applicable to the States. I therefore dissent.
I
As the Court correctly observes, ante at 33, it is clear that, in the early years of our national history, the constitutional guarantee against double jeopardy was restricted to cases in which there had been a complete trial -- culminating in acquittal or conviction. The limited debate on the Double Jeopardy Clause in the House of Representatives confirms this proposition. [p41] 1 Annals of Cong. 753 (1789). See generally United States v. Wilson, 420 U.S. 332, 339-342 (1975). This was consonant with the prevailing English practice regarding pleas in bar. The pleas of autrefois acquit and autrefois convict, which implemented the maxim, repeated by Blackstone, that no man should twice be placed in jeopardy for the same offense, [n1] could be interposed only on the basis of an actual verdict of acquittal or conviction. [n2] It was to these pleas in bar -- which embody a res judicata policy, as the Court describes it, ante at 33 -- that the Double Jeopardy Clause was directed. See, e.g., United States v. Haskell, 26 F.Cas. 207, 212 (No. 15,321) (CC Pa. 1823) (Washington, J.); People v. Goodwin, 18 Johns. 187, 205 (N.Y.Sup.Ct. 1820); cf. People v. Olcott, 2 Johns.Cas. 301 (N.Y.Sup.Ct. 1801) (Kent, J.). This remains the English rule. See n. 2, supra.
But there existed a separate rule of English practice that has become intertwined with the doctrine of pleas in bar in the development of our Double Jeopardy Clause. This was the rule, based upon a dictum of Lord Coke, that, once the "[j]ury is returned and sworn, their verdict must be heard, and they cannot be discharged. . . ." 3 E. Coke, Institutes 110 (6th ed. 1681); accord, id. at 227(b). That this rule arose as an aspect of jury practice, rather than as an element of the guarantee against double jeopardy, is supported by several facts. First, it applied in civil cases, as well as criminal. Kirk, "Jeopardy" During the Period of the Year Books, 82 U.Pa.L.Rev. 602, 609 (1934). Second, the early cases and treaties laid down no clear standard as to the effect of a failure to follow the rule. See, e.g., C. St. Germain, Doctor and Student 1531, Dialogue 2, ch. 52 (1970). Third, it seems never to have been pleaded successfully in bar of a second [p42] prosecution in the period of the Year Books, when the rule is said to have arisen. Kirk, supra at 611. Fourth, Blackstone dealt with the rule governing the discharge of the jury not in his section on pleas in bar, but in his discussion dealing with verdicts. Compare 4 W. Blackstone, Commentaries *335-*338, with id. at *360. [n3] Hence, it is reasonably clear that the rule forbidding discharge of the jury arose out of the circumstances of medieval England,
when jurors of the counties where the facts occurred were summoned to give testimony at Westminster on a trial based on those facts. It seems not to have been an invariable rule, and has never been found to have had any connection, in the cases at English common law, with the problem of two trials for the same offense.
Kirk, supra, at 612 (footnote omitted).
Notwithstanding its origin as an aspect of jury practice, the rule against discharge of the jury became a useful defense against Crown oppression in the 17th century. Reaction to the "tyrannical practice," The Queen v. Charlesworth, 1 B. & S. 460, 500, 121 Eng.Rep. 786, 801 (Q.B. 1861), of discharging juries and permitting reindictment when acquittal appeared likely [n4] was so strong that the common law judges [p43] declared
that, in all capital cases, a juror cannot be withdrawn, though the parties consent to it; that, in criminal cases, not capital, a juror may be withdrawn if both parties consent, but not otherwise. . . .
The King v. Perkins, Holt 403, 90 Eng.Rep. 1122 (K.B. 1698). Whether or not this strict rule was ever stringently applied, it was modified soon after it was announced. The King v. Kinloch, Fost. 16, 168 Eng.Rep. 9 (K.B. 1746). In any event, it seems never to have furnished the basis for a plea of autrefois acquit. Rather, it was viewed as a matter committed to the discretion of the trial judge, from which no writ of error would lie nor any plea in bar of a future prosecution would be allowed. The Queen v. Winsor, 10 Cox C.C. 276, 313-323, 325-326 (Q.B. 1865); The Queen v. Charlesworth, supra, at 507-515, 121 Eng.Rep. at 803-806. [n5] Thus, while the English judges had adapted Lord Coke's rule to the protection of interests later recognized in this country as within the sphere of the Double Jeopardy Clause, compare The Queen v. Winsor, supra at 301-302, with Green v. United States, 355 U.S. 184, 187-188 (1957), they refused to import the rule into the realm of pleas in bar, and it was the latter which informed the framing of the Double Jeopardy Clause.
But it was the common law rule of jury practice -- a rule that we well might have come to regard as an aspect of due process if it had not been absorbed in this country by the [p44] Double Jeopardy Clause -- with which this Court concerned itself in United States v. Perez, 9 Wheat. 579 (1824). Sitting on the Perez Court was Mr. Justice Washington, who one year earlier had written that
the jeopardy spoken of in [the Fifth Amendment] can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the Judgment of the court thereupon.
United States v. Haskell, 26 F.Cas. at 212. Mr. Justice Story authored the opinion of the Court in Perez. Nine years later, he would explain in his treatise on the Constitution that the meaning of the Double Jeopardy Clause is
that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and Judgment has passed thereon for or against him.
3 J. Story, Commentaries on the Constitution § 1781, p. 659 (1833). [n6] It seems most unlikely that either of these Members of the Perez Court thought that the decision was interpreting the Fifth Amendment when it declared that the discharge of a jury, before verdict, on grounds of "manifest necessity," was not a bar to a retrial. [n7] 9 Wheat. at 580. As both Justices Washington and Story believed that the Double Jeopardy Clause embraced only actual acquittal and conviction, they must have viewed Perez as involving the independent rule barring needless discharges [p45] of the jury. [n8] The decisions of this Court throughout the 19th and early 20th centuries dealing with discharges of the jury are ambiguous, but can be read merely as reaffirming the principle of Perez that discharges before verdict may be justified by manifest necessity, without adding a Fifth Amendment gloss. [n9]
Throughout the 19th century, however, may state courts began to blend the rule against needless discharges of juries into the guarantee against double jeopardy contained in the Federal and State Constitutions. [n10] It was recognized that the [p46] discharge rule provided significant protection against being twice vexed:
The right of trial by jury is of but little value to the citizen in a criminal prosecution against him if [the guarantee against double jeopardy] can be violated and the accused left without remedy. If the judge can arbitrarily discharge and impanel juries until one is obtained that will render such a verdict as the state demands, or the attorney for the prosecution desires, and the only protection against such oppression is that a new trial may be ordered in the court trying him, or by the court of last resort, then of what. value is this boasted right?
O'Brian v. Commonwealth, 72 Ky. 333, 339 (1873). Cf. Green v. United States, 355 U.S. at 187-188. Thus, the state courts were putting Lord Coke's rule to a use similar to that of the 17th-century English judges, but they did so with no apparent awareness of the novelty of their action -- under the rubric of the Double Jeopardy Clause. Given this rather unreflective incorporation of a common law rule of jury practice into the guarantee against double jeopardy, it is not surprising that the state courts also generally fixed the attachment of jeopardy at the swearing of the jury. [n11] Because the [p47] state courts do not appear to have been aware that they were adapting a separate rule to a different area of individual rights, they perceived no need to examine all the trappings of the rule in light of the new uses to which it was being put. [n12]
It was after more than a century of development in state courts that the "defendant's valued right to have his trial completed by a particular tribunal" appeared in the decisions of this Court for the first time, also without analysis, as an element of the Double Jeopardy Clause. Wade v. Hunter, 336 U.S. 684, 689 (1940). The policies underlying this "valued right" were not spelled out in Wade, [n13] but the rationale expressed in Green v. United States, supra at 187-188 -- a case not involving mid-trial discharge of the jury -- appears to echo the state courts of a century earlier:
. . . [T]he 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 compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty.
Although neither Wade nor Green confronted the question of when jeopardy attached, the Green Court declared that
[t]his Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury, so that, if the jury is discharged without his consent, he cannot be tried again.
355 U.S. at 188.
Having accepted almost without articulated thought the doctrine that the Double Jeopardy Clause protects against needless discharge of the jury, this Court proceeded to adopt [p48] with a similar lack of reason or analysis the implementing rule that jeopardy attaches when the jury is sworn. In Downum v. United States, 372 U.S. 734 (1963), the trial court declared a mistrial after the jury had been sworn, but before any witness had been called. Finding an absence of "imperious necessity," id. at 736, the Court held that the Fifth Amendment barred reprosecution. The Downum opinion contains no discussion of the point of jeopardy's attachment or of the policies underlying the selection of the swearing of the jury as the determinative moment. [n14] Nevertheless, the swearing of the jury has been accepted since Downum as the constitutional line of demarcation for the attachment of jeopardy, see, e.g., Illinois v. Somerville, 410 U.S. 458, 466 (1973); United States v. Sisson, 399 U.S. 267, 305 (1970), even though no case before this Court has presented a contest over that issue. [n15] This Court, following the lead of the state courts, simply enlisted the doctrine concerning needless discharge of juries in the service of double jeopardy principles, largely without analysis [p49] and apparently with little awareness of history. In view, however, of the consistency with which federal courts have assumed without question that the swearing of the jury triggers jeopardy, I would accept this as the established supervisory rule within the federal system. But the acceptance of a supervisory rule, primarily on grounds of long tenure and convenience, is no justification for elevating it to constitutional doctrine. We should be hesitant to constitutionalize a rule that derives no support from the Framers' understanding of the English practice from which the Double Jeopardy Clause was derived, and which is supported by no doctrinal reasoning that reaches constitutional dimension. Restraint is doubly indicated with respect to this rule, since it is applied only in jury trials. Where a criminal case is tried to the court, jeopardy does not attach until "the court begins to hear evidence." Serfass v. United States, 420 U.S. 377, 388 (1975). No compelling reason has been suggested today, or in earlier decisions of this Court, why the time when jeopardy attaches should be different depending upon whether the defendant's "valued right" is asserted in a jury trial, rather than a bench trial.
I turn next to an examination of the jury trial rule in light of the double jeopardy policies it is now belatedly thought to advance.
II
Three aspects of criminal process ordinarily precede the initial introduction of evidence in a jury trial: motions, jury selection, and opening statements. Defendants are vitally interested in each, yet it is far from clear that any should trigger the attachment of jeopardy.
Defendants may, and sometimes must, see, e.g., Fed.Rule Crim.Proc. 12, move for various rulings on the indictment and the admissibility of evidence before trial. These motions, in practical terms, may decide the defendant's case. They [p50] sometimes may require a devotion of time, energies, and resources exceeding that necessary for the trial itself. Yet it has never been held that jeopardy attaches as of the making or deciding of pretrial motions. See Serfass v. United States, supra. Appellee does not contend otherwise. It is clear, then, that the central concern of the Double Jeopardy Clause cannot be regarded solely as protecting against repeated expenditures of the defendant's efforts and resources.
Opening statements may be made in both bench and jury trials. [n16] In either type of trial, statements by counsel or questions by the court may prompt the prosecutor to abort -- by dismissing the indictment or otherwise -- the proceedings with the view to reindicting the defendant and commencing anew. The prosecutor also may simply request a continuance to gain time to meet some unexpected defense stratagem, although such a motion rarely would prevail. In any event, delay or postponement occasioned during or as a result of the opening statement phase of a trial would be equally adverse to the defendant without regard to whether he were being tried by the court or a jury. The Due Process Clause would protect such a defendant in either case against prosecutorial abuse. Thus, with respect to the opening statement phase of a criminal trial, there appears to be no difference of substance between jury and bench trials in terms of serving double jeopardy policies.
The situation does differ in some respects where a jury is selected, and the defendant -- by voir dire and challenges -- participates in the selection of the factfinder. It is not unusual for this process to entail a major effort and extend over a protracted period. But, as in the case of pretrial [p51] motions, expenditure of effort alone is not sufficient to trigger the attachment of jeopardy. [n17] The federal rule of attachment in jury trials offers no basis for a double jeopardy claim if the prosecutor -- dissatisfied by the jury selection process -- is successful in dismissing the prosecution before the last juror is seated, or indeed before the whole panel is sworn. A defendant's protection against denial or abuse of his rights in this respect lies in the Due Process Clause.
Moreover, the Double Jeopardy Clause cannot be viewed as a guarantee of the defendant's claim to a factfinder perceived as favorably inclined toward his cause. That interest does not bar pretrial reassignment of his case from one judge to another, even though he may have waived jury trial on the belief that the original judge viewed his case favorably. Thus, the Double Jeopardy Clause interest in having his "trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. at 689, must refer to some interest other than retaining a factfinder thought to be disposed favorably toward defendant.
The one event that can distinguish one factfinder from another in the eyes of the law in general, and the Double Jeopardy Clause in particular, is the beginning of the factfinder's work. As the Court stated in Green, "a defendant is placed in jeopardy once he is put to trial before" a factfinder. 355 U.S. at 188 (emphasis added). When the court or jury has undertaken its constitutional duty -- the hearing of evidence -- the trial quite clearly is under way, and the prosecution's case has begun to unfold before the trier of fact. Cf. United States v. Scott, post at 101. As testimony commences, the evidence of the alleged criminal conduct is presented to the [p52] factfinder and becomes a matter of public record. The defendant's public embarrassment and anxiety begin. From this point on, retrial will mean repeating painful and embarrassing testimony, together with the possibility that the earlier "trial run" will strengthen the prosecution's case. At a retrial, for example, prosecution witnesses may be better prepared for the rigors of cross-examination. Thus, the defendant has a strong interest in taking his case to the first jury, once witnesses testify. Carsey v. United States, 129 U.S.App.D.C. 205, 208-209, 392 F.2d 810, 813-814 (1967) (Leventhal, J., concurring). The rationale of the Double Jeopardy Clause is implicated once this threshold is crossed, but not before.
That this is the crucial time for Double Jeopardy Clause purposes is evident from the attachment rule in bench trials. Once the judge has embarked upon his factfinding mission, the defendant is justified in concluding that his ordeal has begun; he is in the hands of his judge, and may expect the matter to proceed to a finish. This same principle should apply in jury trials.
Thus, Montana's rule fixing the attachment of jeopardy at the swearing of the first witness is consonant with the central concerns of the Double Jeopardy Clause. It furnishes a clear line of demarcation for the attachment of jeopardy, and it places that line in advance of the point at which real jeopardy -- in Fifth Amendment terms -- can be said to begin.
III
Even if I were to conclude that the Fifth Amendment -- merely by virtue of long, unreasoned acceptance -- required attachment of jeopardy at the swearing of the jury, I would not hold that the Fourteenth Amendment necessarily imposes that requirement upon the States. This issue would turn on the answer to the question whether jeopardy's attachment at that point is fundamental to the guarantees of the Double Jeopardy Clause. Apodaca v. Oregon, 406 U.S. 404, (1972) (POWELL, J., concurring in judgment); Ludwig v. [p53] Massachusetts, 427 U.S. 618, 632 (1976) (POWELL, J., concurring). As the previous discussion makes clear, the jury trial rule accorded constitutional status by the Court today implicates no rights that have been identified as fundamental in a constitutional sense. There is no basis for incorporating it "jot-for-jot" into the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 181 (1968) (Harlan, J., dissenting).
IV
Aside from paying cryptic homage to the hitherto unexplained "valued right" to a particular jury, the Court does not even attempt to justify its holding that the Fifth Amendment mandates the rule of attachment that it adopts. It identifies no policy of the Double Jeopardy Clause, and no interests of a fair system of criminal justice, that elevate this "right" to constitutional status. The Court's rule is not even a "linedrawing" that finds support in logic or significant convenience.
I perceive no reason for this Court to impose what, in effect, is no more than a supervisory rule of practice upon the courts of every State in the Union.
1. W. Blackstone, Commentaries *335. See also 3 E. Coke, Institutes 213-214 (6th ed. 1681).
2. J Archbold, Pleading, Evidence & Practice in Criminal Cases §§ 435-459 (35th ed.1962).
3. Interestingly, Blackstone wrote that the jury could not be discharged not as soon as it was sworn, but only after evidence had been introduced. 4 W. Blackstone, Commentaries *360. A relatively recent edition of Blackstone, compiled from the earliest editions, indicates that the close of the evidence may have been the point at which the rule against discharge of the jury originally was fixed by that authority. J. Ehrlich, Ehrlich's Blackstone 941 (1959).
4. 2 M. Hale, Pleas of the Crown 294-295 (W. Stokes & E. Ingersoll ed. 1847). In the infamous Ireland's Case, 7 How.St.Tr. 79 (1678), five defendants were accused of high treason. The court permitted the jury to deliberate as to three defendants, but instructed the jury that the evidence against Whitebread and Fenwick was not sufficient to convict, even though "so full, as to satisfy a private conscience." Id. at 121. The court therefore discharged the jury of those two, declaring that it would "be convenient, from what is already proved, to have them stay until more proof may come in." Ibid. They were reindicted, convicted, and executed, Whitebread's Case, 7 How.St.Tr. 311 (1679), despite their pleas of former jeopardy, id. at 315-318.
5. In Conway and Lynch v. The Queen, 7 Ir. 149 (Q.B. 1845), the Irish Court of Queen's Bench did review on writ of error the prisoners' convictions after reindictment, holding that, where the trial judge failed to state on the record the condition of necessity which had prompted the discharge of the first jury, there was an abuse of discretion preventing subsequent trial. The English Court of Queen's Bench, however, rejected this view in Charlesworth and in Winsor. Indeed, that court adopted the view of Justice Crampton, who had dissented in Conway and Lynch.
6. See also United States v. Coolidge, 25 F.Cas. 622 (No. 14,858) (CC Mass. 1815) (Story, J.). Despite the view clearly expressed in Mr. Justice Story's Commentaries, there is some evidence that, by the year following its publication, he was beginning to consider the rule against discharge of the jury as embodying some double jeopardy concerns. See United States v. Gilbert, 25 F.Cas. 1287, 1295-1296 (No. 15,204) (CC Mass. 1834).
7. That Perez was not concerned with pleas in bar -- and therefore not with the Double Jeopardy Clause -- is supported by its recognition of the doctrine of manifest necessity. No "necessity" -- for example, discovery of incontrovertible evidence that. a previously acquitted person was guilty -- sufficed to overcome a valid plea in bar. Necessity went only to the propriety of discharging the jury. See United States v. Bigelow, 14 D.C. 393, 401-403 (1884).
8. The Court recognizes that Perez probably cannot be viewed as a double jeopardy case. Ante at 34 n. 10.
9. Simmons v. United States, 142 U.S. 148 (1891); Logan v. United States, 144 U.S. 263 (1892); Thompson v. United States, 155 U.S. 271 (1894); Dreyer v. Illinois, 187 U.S. 71 (1902); Lovato v. New Mexico, 242 U.S. 199 (1916). See also United States v. Morris, 26 F.Cas. 1323 (No. 15,815) (CC Mass. 1851) (Curtis, J.). But see Keerl v. Montana, 213 U.S. 135 (1909); cf. Kepner v. United States, 195 U.S. 100, 128 (1904). See also United States v. Shoemaker, 27 F.Cas. 1067 (No. 16,279) (CC Ill. 1840); United States v. Watson, 28 F.Cas. 499 (No. 16,651) (SDNY 1868).
10. See, e.g., State v. Garrigues, 2 N.C. 188 (1795) (semble); Commonwealth v. Cook, 6 Serg. & R. 577 (Pa. 1822); State v. M'Kee, 1 Bailey 651 (S.C. 1830); Mahala v. State, 18 Tenn. 532 (1837); State v. Roe, 12 Vt. 93 (1840); Morgan v. State, 13 Ind 215 (1859); People v. Webb, 38 Cal.467 (1869); Nolan v. State, 55 Ga. 521 (1875); Teat v. State, 53 Miss. 439 (1876); Ex parte Maxwell, 11 Nev. 428, 435 (1876); Mitchell v. State, 42 Ohio St. 383 (1884); State v. Ward, 48 Ark. 36, 2 S.W.191 (1886); People v. Gardner, 62 Mich. 307, 29 N.W.19 (1886); Commonwealth v. Hart, 149 Mass. 7, 20 N.E. 310 (1889); State v. Paterno, 43 La.Ann. 514, 9 So. 442 (1891); McDonald v. State, 79 Wis. 651, 48 N.W. 863 (1891); State v. Sommers, 60 Minn. 90, 61 N.W. 907 (1895); Dulin v. Lillard, 91 Va. 718, 20 S.E. 821 (1895). But see, e.g., People v. Goodwin, 18 Johns. 187 (N.Y.Sup.Ct. 1820); Commonwealth v. Wade, 34 Mass. 395 (1835); Hoffman v. State, 20 Md. 425, 433 (1863); United States v. Bigelow, 14 D.C. 393 (1884); State v. Van Ness, 82 N.J.L. 181, 83 A.195 (1912).
American treatises also included the rule against discharge of the jury under the heading of Double Jeopardy. See M. Bigelow, Estoppel 36 (2d ed. 1876); 1 J. Bishop, Commentaries on the Criminal Law § 1016 (5th ed. 1872); T. Cooley, Constitutional Limitations 325-327 (2d ed. 1871). See generally ALI, Administration of the Criminal Law, Commentary to § 6, pp. 61-72 (1935). The leading English criminal law treatise was to the contrary. See 1 J. Chitty, Criminal Law 451-463, 480 (J. Perkins ed. 1847).
11. See, e.g., State v. M'Kee, supra at 655; Moran v. State, supra at 216; State v. Redman, 17 Iowa 329, 333 (1864); People v. Webb, supra at 478; Nolan v. State, supra at 523; State v. Davis, 80 N.C. 384 (1879); Mitchell v. State, supra at 393; State v. Ward, supra at 38, 2 S.W.191; People v. Gardner, supra at 311, 29 N.W. at 20; State v. Paterno, supra at 515, 9 So. 442; McDonald v. State, supra at 653, 48 N.W. at 864; State v. Sommers, supra at 91, 61 N.W. 907; Dulin v. Lillard, supra at 722, 20 S.E. at 822; accord, Bishop, supra, n. 10; Cooley, supra, n. 10.
12. But see United States v. Bigelow, supra.
13. Similarly, the Court today does not explore the reasons supporting valuation of this particular right, merely announcing that it is "valued." Ante at 38.
14. The Government in Downum conceded that jeopardy attaches at the time the jury is sworn. Brief for United States, O.T. 1962, No. 489, p. 31. In support of this concession, the Government cited Lovato v. New Mexico, 242 U.S. 199 (1916), apparently believing that Lovato had involved discharge of the jury immediately after swearing. In that case, however, the witnesses for both sides had been sworn, so that it actually furnished no support for the concession. Since the parties did not dispute the point of jeopardy's attachment, the Court did not discuss the matter. Because the rule of attachment was not put in issue and not discussed in Downum, we owe this sub silentio determination less deference than a holding arrived at after full argument and consideration, see Monell v. New York City Dept. of Social Services, 436 U.S. 658, 709 710, n. 6 (1978) (POWELL, J., concurring), particularly in a constitutional case.
15. In Serfass v. United States, 420 U.S. 377 (1975), the petitioner sought to have the point of attachment moved forward to the filing of pretrial motions. The Court's refusal to fix the attachment of jeopardy at that stage of the litigation did not require any consideration of the policies underlying the rule assumed in Downum and reaffirmed today.
16. Apparently, defense counsel often choose to reserve their opening statements until the close of the prosecution's case. Tr. of Oral Arg. 10, 15-17; Brief on Reargument for United States as Amicus Curiae 23 n. 25. Where this course is followed, there will be no early disclosure of defense strategy.
17. At least one commentator has proposed fixing jeopardy's attachment at the start of voir dire, in order to protect the defendant's interest in each juror, as selected. Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449, 513 (1977). This proposal, however, has no historical foundation, nor any clear grounding in the concerns of the Double Jeopardy Clause.