BLACKMUN, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

437 U.S. 28

Crist v. Bretz

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MR. JUSTICE BLACKMUN, concurring.

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 [p39] 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.