JEOPARDY

Definition

Jeopardy has two distinct legal meanings that arise in entirely different contexts. 1. Criminal jeopardy. The danger of conviction and punishment to which a defendant in a criminal proceeding is exposed once a valid indictment has been returned and a petit jury has been impaneled and sworn to try the case. The moment jeopardy "attaches" is legally significant because the Fifth Amendment to the U.S. Constitution prohibits placing any person twice in jeopardy for the same offense. Jeopardy does not attach merely upon arrest, charge, or indictment standing alone — the traditional rule requires the swearing of the jury; in bench trials, jeopardy attaches when the first witness is sworn. 2. Tax jeopardy. A separate, administrative sense used in federal tax law, where the IRS may make an immediate ("jeopardy") assessment or levy when it determines that collection of a tax deficiency is in jeopardy — meaning the taxpayer appears likely to flee, conceal assets, or otherwise render collection impossible. This usage is a term of art in revenue administration and has no connection to the criminal constitutional doctrine beyond the shared root word.

Common Language

Modern common usage (Wiktionary): To jeopardize; to endanger — used broadly to mean placing something at risk of harm or loss. Historical common usage (Webster's 1913): Exposure to death, loss, or injury; hazard; danger. Webster's drew directly on biblical and Shakespearean usage, where the word meant any serious peril to life or welfare. The gap matters: In ordinary English, jeopardy is simply danger of any kind. In criminal law, jeopardy is a precise procedural status — a specific point in a prosecution at which constitutional protections activate. A defendant may be in grave practical danger long before legal jeopardy attaches, and the two concepts do not coincide.

Common Confusion

Three conflations appear repeatedly in historical sources and modern practice: First, jeopardy vs. indictment. Being indicted does not place a defendant in jeopardy in the constitutional sense. Historical dictionaries sometimes blur this by defining jeopardy as danger arising from a valid indictment without specifying that jury impanelment is also required. Second, criminal jeopardy vs. tax jeopardy. The word appears in two wholly unrelated legal regimes. Researchers moving between criminal law and tax materials will encounter the term in incompatible senses. A jeopardy assessment is an administrative remedy, not a constitutional concept. Third, double jeopardy vs. jeopardy. Jeopardy is the threshold status; double jeopardy is the constitutional protection against its repetition. The two terms are often used interchangeably in loose speech but carry distinct legal weight — one is a condition, the other is a prohibition.

Core Elements

For criminal jeopardy to attach, the following are traditionally required: — A court of competent jurisdiction. The tribunal must have authority over the offense and the defendant. — A valid indictment or information. The charging instrument must be legally sufficient. — A jury impaneled and sworn (jury trial). Attachment occurs at the moment of the oath administered to the jurors. — First witness sworn (bench trial). In a non-jury proceeding, attachment occurs when the first witness takes the oath. Once attached, jeopardy continues through verdict and sentence. If jeopardy terminates without a final resolution — through mistrial, hung jury, or appeal — the double jeopardy analysis turns on whether the termination was with or without the defendant's consent, and whether manifest necessity existed.

Why It Matters in Research

The attachment question is a recurring research trap. Historical sources, including both editions of Black's and Burrill, define jeopardy as danger arising from indictment plus jury impanelment, but they do not always cleanly distinguish when each element alone is sufficient. Researchers working with pre-twentieth-century materials should verify the attachment rules against the jurisdiction's own case law rather than relying on dictionary formulations. The dual-sovereignty dimension is a significant corpus navigation issue. The double jeopardy clause has been interpreted to permit successive prosecutions by separate sovereigns — federal and state — for the same underlying conduct. This doctrine is entirely absent from the historical dictionaries in this set, which predate its full doctrinal development. Researchers tracing double jeopardy arguments in older materials will not find dual sovereignty discussed; the gap must be supplemented with encyclopedia-level analysis. The tax jeopardy sense appears mostly in federal materials from the twentieth century onward. Bouvier's and Anderson's both reference the general danger sense of jeopardy in the postal robbery statutes — a third, now largely historical, statutory usage. Researchers in early federal criminal materials should note that "jeopardy" in nineteenth-century federal statutes sometimes means simple physical danger, not the constitutional procedural status. Jurisdictional variation in attachment rules for plea proceedings is an additional trap. In guilty plea cases, jeopardy attaches when the court accepts the plea unconditionally. States vary on exactly when acceptance is complete, and historical sources do not address this scenario at all.

Historical Dictionary Support

The historical sources in this set are broadly consistent on the core definition: jeopardy is the danger of conviction and punishment attending a valid criminal proceeding with a sworn jury. Burrill's formulation — "exposure to death, loss or injury" — is the most general and tracks Webster's 1913 closely, reflecting the word's common meaning before it hardened into constitutional doctrine. Black's (2nd Ed.) is the most technically precise of the group, specifying both the valid indictment and the impaneled, sworn petit jury as prerequisites. This is the formulation closest to modern constitutional doctrine. Bouvier's is notable for treating jeopardy primarily in its statutory sense — the postal robbery act's "put his life in jeopardy" language — rather than centering the constitutional double jeopardy protection. This reflects the era's emphasis on positive statutory text over constitutional doctrine as a practical litigation tool. Anderson's similarly leads with the statutory peril sense before addressing the constitutional dimension. What all historical sources miss: the attachment rules for bench trials and guilty pleas, the dual sovereignty doctrine, the tax jeopardy administrative framework, and the procedural complexity surrounding mistrials and retrials. The historical dictionaries treat jeopardy as a threshold concept and leave its downstream consequences almost entirely to case law.

Jurisdictional Note

The federal constitutional floor on double jeopardy is incorporated against the states, but states retain latitude in defining attachment timing and in recognizing broader protections than the federal minimum. Some states have constitutional or statutory double jeopardy provisions that go further than the Fifth Amendment, particularly regarding successive prosecutions by state subdivisions or retrials following prosecutorial misconduct.

Encyclopedia Cross-Reference

Double Jeopardy — Attachment and Scope (The Law Mind Criminal Law Encyclopedia, criminal_170) Double Jeopardy — Dual Sovereignty Doctrine (The Law Mind Criminal Law Encyclopedia, criminal_172) Jeopardy Assessments (The Law Mind Tax Encyclopedia, tax_145)

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