AN ACT CLARIFYING THAT IN A CRIMINAL PROSECUTION, JEOPARDY ATTACHES WHEN A JURY IS EMPANELED AND SWORN; AND AMENDING SECTION 46-11-503, MCA.

WHEREAS, in Keating v. Sherlock, 278 Mont. 218, 924 P.2d 1297, 53 St. Rep. 855 (1996), the Montana Supreme Court held that section 46-11-503(1)(d)(i), MCA, has been unconstitutional since the decision in Crist v. Bretz, 437 U.S. 28 (1978).

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 46-11-503, MCA, is amended to read:

"46-11-503. Prosecution based on same transaction barred by former prosecution. (1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses lie in a single court, a prosecution is barred if:

(a) the former prosecution resulted in an acquittal. There is an acquittal whenever the prosecution results in a finding of not guilty by the trier of fact or in a determination that there is insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense that is subsequently set aside is an acquittal of the greater offense that was charged.

(b) the former prosecution resulted in a conviction that has not been set aside, reversed, or vacated;

(c) after a charge had been filed, the prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated; or

(d) the former prosecution was terminated for reasons not amounting to an acquittal and takes place:

(i) in a jury trial, when the jury is empaneled and sworn; or

(ii) in a nonjury trial, after the first witness is sworn but before a judgment as to guilt or innocence is reached.

(2) A prosecution based upon the same transaction as a former prosecution is not barred under subsection (1)(d) when:

(a) the defendant consents to the termination or waives the right to object to the termination; or

(b) the trial court finds that the termination is necessary because:

(i) it is physically impossible to proceed with the trial in conformity with law;

(ii) there is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law;

(iii) prejudicial conduct makes it impossible to proceed with the trial without manifest injustice to either the defendant or the state;

(iv) the jury is unable to agree upon a verdict; or

(v) false statements of a juror on voir dire prevent a fair trial."

- END -

I hereby certify that the within bill,

SB 0201, originated in the Senate.

Secretary of the Senate

President of the Senate

Signed this	day

of	, .

Speaker of the House

Signed this	day

of	, .

SENATE BILL NO. 201

INTRODUCED BY W. MCNUTT, M. HALLIGAN, S. DOHERTY

BY REQUEST OF THE SENATE JUDICIARY STANDING COMMITTEE

AN ACT CLARIFYING THAT IN A CRIMINAL PROSECUTION, JEOPARDY ATTACHES WHEN A JURY IS EMPANELED AND SWORN; AND AMENDING SECTION 46-11-503, MCA.