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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.12

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 (1949). The policies underlying this "valued right" were not spelled out in Wade, but the rationale expressed in Green v. United States, supra, at 187-188—a case not involving midtrial discharge of the jury-appears to echo the state courts of a century earlier:

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"... [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

12 But see United States v. Bigelow, supra.

18 Similarly, the Court today does not explore the reasons supporting valuation of this particular right, merely announcing that it is "valued." Ante, at 38.

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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 witnesses 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." 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.15

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 anal

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.

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ysis 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

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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.16 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 challengesparticipates 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

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.

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motions, expenditure of effort alone is not sufficient to trigger the attachment of jeopardy." 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 evidencethe 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

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.

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