Jeopardy attaches in a bench trial and in a jury trial.

• A. When the jury is sworn in a jury trial
• B. When the first witness is sworn in a bench trial
• C. Both A and B
• D. Neither A nor B

Answer: (B)

Jeopardy attaches at the moment the trial truly begins to adjudicate the defendant’s guilt, and the timing depends on whether the case is tried before a jury or a judge.

In a jury trial, the jurors’ oath marks the start of the trial and the moment jeopardy attaches, because the jurors are the ones who will decide guilt or innocence. In a bench trial, there is no jury, so the point at which jeopardy attaches is the start of the evidentiary phase, which is when the first witness is sworn. From that moment, the defendant’s risk of conviction is determined by the judge’s ruling on the evidence and the subsequent verdict.

Thus, the best answer identifies that jeopardy attaches when the first witness is sworn in a bench trial, rather than at the jury’s oath in a jury trial.