104.3Double Jeopardy

I. Attachment of Jeopardy

Obviously, a defendant cannot be protected from double jeopardy until s/he is first placed in jeopardy. This is the moment in time at which jeopardy is said to “attach,” and it marks the point after which acquittal, conviction, or dismissal/mistrial will have double jeopardy consequences. See State v. Tate, 300 N.C. 180, 182-83 (1980); State v. Fowler, 197 N.C. App. 1, 17 (2009).

1. Jury Trial
   In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Martinez v. Illinois, 572 U.S. 833, 839 (2014); State v. Courtney, 372 N.C. 458, 463 (2019).
2. Bench Trial
   In a bench trial, jeopardy attaches when the court begins to hear evidence or testimony. Serfass v. United States, 420 U.S. 377, 388 (1975); State v. Brunson, 327 N.C. 244, 247 (1990).
3. Guilty Plea
   In a guilty plea case, jeopardy does not attach until the guilty plea is accepted by a court. State v. Ross, 173 N.C. App. 569, 574 (2005), aff’d per curiam, 360 N.C. 355 (2006); State v. Wallace, 345 N.C. 462, 467 (1997); State v. Wood, 164 N.C. App. 601 (2004).
4. Prior Dismissal
   A second proceeding is not barred if the first proceeding was ended before jeopardy attached, as when charges are dismissed before trial, either by the State, State v. Brunson, 327 N.C. 244, 247 (1990); State v. Strickland, 98 N.C. App. 693, 695 (1990), or by the trial court. State v. Payne, 256 N.C. App. 572, 590 (2017); State v. Newman, 186 N.C. App. 382, 386 (2007).
5. Fraudulent acquittal
   Jeopardy has not attached when a defendant has procured an acquittal by fraud; in that case, there has been no real trial, and the defendant was never actually in jeopardy. 6 LAFAVE, CRIMINAL PROCEDURE, § 25.1(d); State v. Craig, 176 N.C. 740, 743 (1918).

II. Termination of Jeopardy

The double jeopardy bar requires not only a prior attachment of jeopardy (see above) but also some event that terminated the original jeopardy. Richardson v. United States, 468 U.S. 317, 325 (1984); State v. Robinson, 375 N.C. 173, 185 (2020). Stated differently, once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, s/he may not be retried for the same offense. Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003); State v. Courtney, 372 N.C. 458, 462 (2019). Jeopardy may be terminated by acquittal, by conviction, or by mistrial or dismissal interrupting the proceedings. Each scenario is considered more fully below.

1. Continuing Jeopardy
   There are two situations where jeopardy is deemed “continuing.” In a system allowing for trial de novo (such as in North Carolina), the trial in the lower court and the trial de novo in the higher court are treated as a two-stage continuous proceeding rather than as two separate trials. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 312 (1984); State v. Smith, 312 N.C. 361, 383 (1984). Continuing jeopardy also occurs if a trial ends without a verdict, as when a mistrial is declared. Richardson v. United States, 468 U.S. 317, 325 (1984); State v. Courtney, 372 N.C. 458, 464 (2019).
2. Mistrial
   The declaration of a mistrial does, however, terminate jeopardy when the judge declares a mistrial over a defendant’s objection and absent “manifest necessity.” Arizona v. Washington, 434 U.S. 497, 505 (1978); State v. Odom, 316 N.C. 306, 310 (1986). The same result is obtained when a prosecutor “goads” a defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679 (1982); State v. White, 322 N.C. 506, 511 (1988). After jeopardy has attached, a judicial dismissal that contemplates further proceedings is treated as equivalent to a mistrial. Lee v. United States, 432 U.S. 23, 31 (1977); State v. Schalow, 251 N.C. App. 334, 346-47 (2016).
3. Defendant's Request
   An otherwise terminal event does not terminate jeopardy if it occurs at the defendant’s request. See United States v. Scott, 437 U.S. 82, 99 (1978); State v. Vestal, 131 N.C. App. 756, 758 (1998). Retrial is not barred by a prior conviction, for example, if the defendant later succeeds in having the conviction overturned on grounds other than insufficiency of evidence. Price v. Georgia, 398 U.S. 323, 326-27 (1970); State v. Britt, 291 N.C. 528, 543 (1977). Similarly, a defendant may be retried for the same offense when, due to his own request, the trial court grants a mistrial (absent goading by the prosecutor), United States v. Dinitz, 424 U.S. 600, 607 (1976); State v. White, 322 N.C. 506, 510 (1988), or a dismissal (absent insufficient evidence). United States v. Scott, 437 U.S. 82, 100 (1978); State v. Priddy, 115 N.C. App. 547, 551 (1994).
4. Voluntary Dismissal After Mistrial
   In State v. Courtney (2019), the North Carolina Supreme Court held that, when the defendant’s first trial ended with a hung jury (i.e., mistrial) and the State took a voluntary dismissal under G.S. 15A-931, the dismissal was an event that terminated jeopardy, barring retrial. State v. Courtney, 372 N.C. 458, 471 (2019).