47. How should the court proceed?

The Fifth Amendment provides the right to be free of double jeopardy for the same offense. Once jeopardy attaches, a defendant may not be tried for the same offense twice. Jeopardy attaches during a jury trial at the empaneling and swearing-in of the jury. Crist v. Bretz, 437 U.S. 28 (1978). Or, in a bench trial, jeopardy attaches when the first witness is sworn in. Thus, during a preliminary hearing and/or grand jury investigation, double jeopardy has not yet attached.

C is correct. Because the proceedings had only gone so far as the preliminary hearing, and no witness had been sworn or jury empaneled, jeopardy had not yet attached. As a result, there are no double jeopardy protections against being indicted by the grand jury after it was dismissed during the preliminary hearing.

A is incorrect. The first charge was dismissed by a judge during a preliminary hearing. No jury had been empaneled and no witness sworn in for purposes of trial, and therefore, jeopardy had not yet attached. Subsequently, any further prosecution as the result of a grand jury indictment is not barred.

B is incorrect. There is no requirement that the prosecution must present evidence to the grand jury that wasn't presented previously during the preliminary hearing in order to properly secure an indictment. As stated above, jeopardy had not yet attached, and therefore the prosecution acted within its power to take the evidence to a grand jury to obtain the indictment.

D is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the motion should be denied because jeopardy had not attached, it is not necessary that a conviction or acquittal occur in order to be protected against double jeopardy.