reargument, 434 U. S. 980, 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?"

II
A

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. 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. 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

6

In addition to the present case, see Arizona v. Washington, 434 U. S. 497; United States v. Wheeler, 435 U. S. 313; Burks v. United States, ante, p. 1; Greene v. Massey, ante, p. 19; Sanabria v. United States, post, p. 54; Swisher v. Brady, No. 77-653; United States v. Scott, post, p. 82.

28

Opinion of the Court

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; Illinois v. Somerville, 410 U. S. 458, 467.

The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed then, as it does now,' the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittal-after a complete trial. 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. 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. 659660 (1833).

But this constitutional understanding was not destined to endure. Beginning with this Court's decision in United

'11 Halsbury's Laws of England ¶242 (4th ed. 1976).

• Established at least by 1676, Turner's Case, 89 Eng. Rep. 158, the rule was embodied in defensive pleas of former conviction or former acquittal. Although the pleas did not mention jeopardy, Blackstone commented that they were based on the "universal maxim . . . that no man is to be brought into jeopardy of his life, more than once, for the same offence." 4 W. Blackstone, Commentaries #335. See generally J. Sigler, Double Jeopardy 1-37 (1969).

See Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1 (1960). See also M. Friedland, Double Jeopardy 6 (1969); ALI, Administration of the Criminal Law: Double Jeopardy 7 (1935).

States v. Perez, 9 Wheat. 579, 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, 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

10 In perhaps the first expression of this concept, a state court in 1822 concluded that jeopardy may attach prior to a verdict, because "[t]here is a wide different between a verdict given and the jeopardy of a verdict." Commonwealth v. Cook, 6 Serg. & R. 577, 596 (Pa.).

In the Perez case, the trial judge had discharged a deadlocked jury, and the defendant argued in this Court that the discharge was a bar to a second trial. The case has long been understood as standing for the proposition that jeopardy attached during the first trial, but that despite the former jeopardy a second trial was not barred by the Double Jeopardy Clause because there was a "manifest necessity" for the discharge of the first jury. See, e. g., United States v. Tateo, 377 U. S. 463, 467; Wade v. Hunter, 336 U. S. 684, 689-690. In fact, a close reading of the short opinion in that case could support the view that the Court was not purporting to decide a constitutional question, but simply settling a problem arising in the administration of federal criminal justice. But to cast such a new light on Perez at this late date would be of academic interest only. In two cases decided in the wake of Perez the Court simply followed its precedential authority: Simmons v. United States, 142 U. S. 148; Thompson v. United States, 155 U. S. 271. But it had become clear at least by the time of Kepner v. United States, 195 U. S. 100, decided in 1904, that jeopardy does attach even in a trial that does not culminate in a jury verdict: "[A] person has been in jeopardy when he is regularly charged with a crime before a tribunal properly organized and competent to try him.... Undoubtedly in those jurisdictions where a trial of one accused of crime can only be to a jury, and a verdict of acquittal or conviction must be by a jury, no legal jeopardy can attach until a jury has been called and charged with the deliverance of the accused." Id., at 128. See also United States v. Dinitz, 424 U. S. 600; United States v. Wilson, 420 U. S. 332, 343-344; Gori v. United States, 367 U. S. 364.

offense even though his trial is discontinued without a verdict." See also, e. g., Arizona v. Washington, 434 U. S. 497.

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:

"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 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 it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court's decision in Downum v. United States, 372 U. S. 734.11 There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial when jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn. See United States v. Martin Linen Supply Co., 430 U. S. 564, 569; Serfass v. United States, 420 U. S., at 388.

The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. That

11 But see Kepner v. United States, supra, at 128; n. 10, supra.

interest was described in Wade v. Hunter, supra, as a defendant's "valued right to have his trial completed by a particular tribunal." 336 U. S., at 689. It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice." Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict."

Regardless of its historic origin, however, the defendant's "valued right to have his trial completed by a particular tribunal" is now within the protection of the constitutional guarantee against double jeopardy, since it is that "right" that lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn. United States v. Martin Linen Supply Co., supra; Serfass v. United States, supra, at 388; Illinois v. Somerville, 410 U. S., at 467; United States v. Jorn, 400 U. S. 470, 478-480, 484-485 (plurality opinion).

12 Trial juries were at first merely a substitute for other inscrutable methods of decisionmaking, such as trial by battle, compurgation, and ordeal. See 1 W. Holdsworth, A History of English Law 317 (7th ed. 1956). See also T. Plucknett, A Concise History of the Common Law 125 (5th ed. 1956). They soon evolved, however, into a more rational instrument of decisionmaking-serving as a representative group of peers to sit in judgment on a defendant's guilt.

13 Illustrative of this tradition was the practice of keeping the jury together unfed and without drink until it delivered its unanimous verdict. See Y. B. Trin. 14 Hen. VII, pl. 4. See Plucknett, supra, at 119. As Lord Coke put the matter: "A jury sworn and charged in case of life or member, cannot be discharged by the court or any other, but they ought to give a verdict." 1 E. Coke, Institutes 227 (b) (6th ed. 1861). And an English court said as late as 1866: "[The rule] seems to command the confinement of the jury till death if they do not agree, and to avoid any such consequence an exception was introduced in practice which Blackstone has described by the words 'except in case of evident necessity.'" Winsor v. The Queen, [1866] 1 Q. B. 390, 394.