Serfass v. United States
420 U.S. 377 (1975)
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Rule of Law:
The Double Jeopardy Clause of the Fifth Amendment does not bar the government from appealing a pretrial dismissal of an indictment, because jeopardy does not attach until a defendant is put to trial before the trier of fact.
Facts:
- Petitioner Serfass, whose military service was deferred while he was in the Peace Corps, was ordered to report for induction on January 18, 1971.
- On December 29, 1970, Serfass requested and submitted a conscientious objector application to his local draft board.
- After an interview on January 13, 1971, the board informed Serfass by letter that it had decided not to reopen his file, stating there was 'no change over which [petitioner] had no control.'
- The board informed Serfass he was still under orders to report for induction.
- On January 18, 1971, Serfass appeared at the examining station as ordered but refused to be inducted into the Armed Forces.
Procedural Posture:
- A grand jury indicted Serfass in the United States District Court for willfully failing to submit to induction.
- Serfass pleaded not guilty and demanded a jury trial.
- Prior to trial, Serfass filed a motion to dismiss the indictment, which the District Court granted after reviewing his Selective Service file and an affidavit.
- The United States appealed the dismissal to the U.S. Court of Appeals for the Third Circuit.
- The Court of Appeals, as the intermediate appellate court, held that jeopardy had not attached, reversed the District Court's dismissal, and remanded the case for trial.
- The United States Supreme Court granted certiorari to review the Court of Appeals' decision on the jurisdictional question.
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Issue:
Does the Double Jeopardy Clause of the Fifth Amendment bar the government from appealing a district court's pretrial order dismissing an indictment, where the dismissal was based on a legal defense determined from evidence outside the indictment but occurred before a jury was empaneled and sworn?
Opinions:
Majority - Mr. Chief Justice Burger
No. The Double Jeopardy Clause does not bar the government's appeal because jeopardy had not yet attached. The clause's protection applies only after a defendant is 'put to trial before the trier of the facts.' For a jury trial, jeopardy attaches when the jury is empaneled and sworn; for a bench trial, it attaches when the court begins to hear evidence. In this case, Serfass's indictment was dismissed in a pretrial motion before a jury was selected and before he had waived his right to a jury trial. Since he was never subjected to the risk of a determination of guilt, jeopardy did not attach, and the government's appeal of the pretrial dismissal is constitutionally permissible under the Criminal Appeals Act.
Dissenting - Mr. Justice Douglas
Yes. The Double Jeopardy Clause bars the government's appeal. The dissent's view is that because the District Court's ruling was based on evidence that could constitute a defense on the merits at trial, jeopardy should be considered to have attached.
Analysis:
This decision solidifies a bright-line rule for when jeopardy attaches, clarifying that a pretrial dismissal, even one based on evidentiary facts, is not the functional equivalent of an acquittal for double jeopardy purposes. It confirms Congress's intent in the 1970 amendment to the Criminal Appeals Act to permit government appeals whenever constitutionally permissible. The ruling prevents a defendant from obtaining a final, unreviewable dismissal on the merits of a defense before ever being placed at risk of conviction, thereby strengthening the prosecution's ability to challenge dispositive pretrial rulings.
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