It follows that Montana's view as to when jeopardy attaches is impermissible under the Fourteenth Amendment unless it can be said that the federal rule is not "at the core" of the Double Jeopardy Clause. See Pointer v. Texas, 380 U. S. 400, 406; Malloy v. Hogan, 378 U. S. 1, 11; Ker v. California, 374 U. S. 23, 33. In asking us to hold that it is not, appellants argue that the federal standard is no more than an arbitrarily chosen rule of convenience," similar in its lack of constitutional status to the federal requirement of a unanimous verdict by 12 jurors, which has been held not to bind the States. Apodaca v. Oregon, 406 U. S. 404; Williams v. Florida, 399 U. S. 78. But see Ballew v. Georgia, 435 U. S. 223.

If the rule that jeopardy attaches when the jury is sworn were simply an arbitrary exercise of linedrawing, this argument might well be persuasive, and it might reasonably be concluded that jeopardy does not constitutionally attach until the first witness is sworn, to provide consistency in jury and nonjury trials.15 Indeed, it might then be concluded that the point of the attachment of jeopardy could be moved a few steps forward or backward without constitutional significance.10

But the federal rule as to when jeopardy attaches in a jury

14 The United States as amicus curiae makes a similar argument. 15 In nonjury trials jeopardy does not attach until the first witness is sworn. Serfass v. United States, 420 U. S. 377, 388.

16 The United States alternatively proposes a due process sliding "interest balancing test" under which the further the trial has proceeded the more the justification required for a midtrial termination. Montana alternatively proposes that jeopardy should not be held to attach until a prima facie case has been made, on the premise that only then will a defendant truly be in jeopardy. The legal literature provides at least one other approach: jeopardy should attach "as soon as the process of selecting the jury begins." See Schulhofer, Jeopardy and Mistrials, 125 U. Pa. L. Rev. 449, 512-514 (1977).

BLACKMUN, J., concurring

437 U.S.

trial is not only a settled part of federal constitutional law. It is a rule that both reflects and protects the defendant's interest in retaining a chosen jury. We cannot hold that this rule, so grounded, is only at the periphery of double jeopardy concerns. Those concerns the finality of judgments, the minimization of harassing exposure to the harrowing experience of a criminal trial, and the valued right to continue with the chosen jury-have combined to produce the federal law that in a jury trial jeopardy attaches when the jury is empaneled and sworn.

We agree with the Court of Appeals that the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence." 546 F. 2d, at 1343. In Illinois v. Somerville, supra, at 467, a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that "jeopardy 'attached' when the first jury was selected and sworn." Today we explicitly hold what Somerville assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy. The judgment is

MR. JUSTICE BLACKMUN, concurring.

Affirmed.

Although I join the Court's opinion, I write to emphasize the fact that I am not content to rest the result, as the Court seems to be, ante, at 36, solely on the defendant's "valued right to have his trial completed by a particular tribunal," a factor mentioned by Mr. Justice Black, speaking for the Court, in Wade v. Hunter, 336 U. S. 684, 689 (1949). That approach would also support a conclusion that jeopardy attaches at the very beginning of the jury selection process. See Schulhofer, Jeopardy and Mistrials, 125 U. Pa. L. Rev. 449, 512-514 (1977).

Other interests are involved here as well: repetitive stress

28

BURGER, C. J., dissenting

and anxiety upon the defendant; continuing embarrassment for him; and the possibility of prosecutorial overreaching in the opening statement.

It is perhaps true that each of these interests could be used, too, to support an argument that jeopardy attaches at some point before the jury is sworn. I would bring all these interests into focus, however, at the point where the jury is sworn because it is then and there that the defendant's interest in the jury reaches its highest plateau, because the opportunity for prosecutorial overreaching thereafter increases substantially, and because stress and possible embarrassment for the defendant from then on is sustained.

MR. CHIEF JUSTICE BURGER, dissenting.

As a "rulemaking" matter, the result reached by the Court is a reasonable one; it is the Court's decision to constitutionalize the rule that jeopardy attaches at the point when the jury is sworn-so as to bind the States-that I reject. This is but another example of how constitutional guarantees are trivialized by the insistence on mechanical uniformity between state and federal practice. There is, of course, no reason why the state and federal rules must be the same. In the period between the swearing of the jury and the swearing of the first witness, the concerns underlying the constitutional guarantee against double jeopardy are simply not threatened in any meaningful sense even on the least sanguine of assumptions about prosecutorial behavior. We should be cautious about constitutionalizing every procedural device found useful in federal courts, thereby foreclosing the States from experimentation with different approaches which are equally compatible with constitutional principles. All things "good" or "desirable" are not mandated by the Constitution. States should remain free to have procedures attuned to the special problems of the criminal justice system at the state and local levels. Principles of federalism should not so readily be com

promised for the sake of a uniformity finding sustenance perhaps in considerations of convenience but certainly not in the Constitution. Countless times in the past 50 years this Court has extolled the virtues of allowing the States to serve as "laboratories" to experiment with procedures which differ from those followed in the federal courts. Yet we continue to press the States into a procrustean federal mold. The Court's holding will produce no great mischief, but it continues, I repeat, the business of trivializing the Constitution on matters better left to the States.

Accordingly, I join MR. JUSTICE POWELL'S dissent.

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 proposi

28

POWELL, J., dissenting

tion. 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,1 could be interposed only on the basis of an actual verdict of acquittal or conviction. 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 retorned and sworn, their verdict must be heard, and they cannot be discharged . . . ." 3 E. Coke, Institutes 110 (6th ed. 1681); accord, 1 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

14 W. Blackstone, Commentaries *335. See also 3 E. Coke, Institutes 213-214 (6th ed. 1681).

2 J. Archbold, Pleading, Evidence & Practice in Criminal Cases §§ 435459 (35th ed. 1962).