March 09, 2008

Double Jeopardy Has Attached

In the criminal law of the United States and many other countries, "double jeopardy" is prohibited. Simply put, this means that you can't be tried more than once for the same offense.

In the US, double jeopardy is unconstitutional due to the following clause of the Fifth Amendment:

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb

In the common law, the antecedant of the doctrine of double jeopardy applied only to final judgment. A defendant could plead that a new trial was barred by the fact that he was autrefois acquit "previously acquitted" or autrefois convict "previously convicted". However, the prohibition has developed in such a way as to preclude, with certain exceptions, more than one trial for the same offense, even if no verdict was reached in the first trial. As Blackstone (4 W. Blackstone, Commentaries 26) put it:

no man is to be brought into jeopardy of his life more than once for the same offence.

If a final judgment is not required for a prosecution to preclude a later prosecution, the question arises as to the point at which we shall say that the first prosecution should count. This point is known, after Blackstone's formulation above, as the point at which "jeopardy has attached". In cases tried before a jury, jeopardy attaches when the jury is sworn. In cases tried before a judge, jeopardy attaches when the first witness is sworn.

Last night I was watching Law and Order and for the umpteenth time heard the expression "double jeopardy has (not) attached". Whenever I hear this it makes me wince, and I hear it a lot on Law and Order. Real lawyers do not say this, for good reason: it doesn't make any sense. What "attaches" once a certain point is reached in a prosecution is plain "jeopardy"; "double jeopardy" is what would happen if that first prosecution were allowed to be followed by a second prosecution for the same offense.

I mention this in part in the probably vain hope that word will get back to the producers of the show and they will stop it, and in part because I wonder how it happens. My understanding is that such legal shows have advisers to keep them accurate. If so, how is it that this one not only got by but is a persistent error? I also wonder how the error arises in the first place. What does someone who says this, or writes it in a script, think that the phrase means? The best I can come up with is that they think it means: "the trial has now reached the point at which an additional trial would result in a violation of the ban on double jeopardy", but that seems awfully contrived and unlikely.

Update: In asserting that real lawyers do not say "double jeopardy has attached" I relied on individual judgment, including that of a law professor. Reader David Cohen ran a search on Westlaw's Federal court database and found numerous instances of this usage, along with "jeopardy has (not) attached", so it seems that real lawyers, in particular, judges, actually do use this expression. He found no instances of the "double jeopardy" usage in Supreme Court opinions, suggesting that it is regarded as a less correct, less formal, usage. It is still a sloppy and awkward usage, but what is contrived for an ordinary person no doubt is less so for judges. This is a nice example of how people's impressions of usage may not reflect the facts as revealed by search of a corpus.

Reader David Seidman suggests a possible motivation for preferring "double jeopardy has (not) attached", namely that for the average, non-lawyer viewer, the meaning of jeopardy having attached may be obscure, while "double jeopardy" is something more likely to be familiar.

Posted by Bill Poser at March 9, 2008 07:31 PM