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Under the Fifth Amendment’s protection against double jeopardy, you cannot be prosecuted for the same offense twice. However, when this protection applies depends on how far a case gets in the criminal justice system.
“…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;”
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
The common law generally required that the previous trial must have ended in a judgment, of conviction or acquittal, but the constitutional rule is that jeopardy attaches much earlier, in jury trials when the jury is sworn, and in trials before a judge without a jury, when the first evidence is presented.1 Therefore, if after jeopardy attaches the trial is terminated for some reason, it may be that a second trial, even if the termination was erroneous, is barred.2 The reasons the Court has given for fixing the attachment of jeopardy at a point prior to judgment and thus making some terminations of trials before judgment final insofar as the defendant is concerned is that a defendant has a valued right to have his trial completed by a particular tribunal.3 The reason that the defendant’s right is so valued is that he has a legitimate interest in completing the trial once and for all and concluding his confrontation with society,4 so as to be spared the expense and ordeal of repeated trials, the anxiety and insecurity of having to live with the possibility of conviction, and the possibility that the prosecution may strengthen its case with each try as it learns more of the evidence and of the nature of the defense.5 These reasons both inform the determination when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial’s premature termination.
A second trial may be permitted where a mistrial is the result of manifest necessity,6 as when, for example, the jury cannot reach a verdict7 or circumstances plainly prevent the continuation of the trial.8 The question of whether there is double jeopardy becomes more difficult, however, when the doctrine of manifest necessity is called upon to justify a second trial following a mistrial granted by the trial judge because of some event within the prosecutor’s control or because of prosecutorial misconduct or because of error or abuse of discretion by the judge himself. There must ordinarily be a balancing of the defendant’s right in having the trial completed against the public interest in fair trials designed to end in just judgments.9 Thus, when, after jeopardy attached, a mistrial was granted because of a defective indictment, the Court held that retrial was not barred; a trial judge properly exercises his discretion in cases in which an impartial verdict cannot be reached or in which a verdict on conviction would have to be reversed on appeal because of an obvious error. If an error could make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that the government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.10 On the other hand, when, after jeopardy attached, a prosecutor successfully moved for a mistrial because a key witness had inadvertently not been served and could not be found, the Court held a retrial barred, because the prosecutor knew prior to the selection and swearing of the jury that the witness was unavailable.11 Although this case appeared to establish the principle that an error of the prosecutor or of the judge leading to a mistrial could not constitute a manifest necessity for terminating the trial, Somerville distinguished and limited Downum to situations in which the error lends itself to prosecutorial manipulation, in being the sort of instance that the prosecutor could use to abort a trial that was not proceeding successfully and obtain a new trial that would be to his advantage.12
Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense. In Arizona v. Washington,13 defense counsel in his opening statement made prejudicial comments about the prosecutor’s past conduct, and the prosecutor's motion for a mistrial was granted over the defendant’s objections. The Court ruled that retrial was not barred by double jeopardy. Granting that in a strict, literal sense, mistrial was not necessary because the trial judge could have given limiting instructions to the jury, the Court held that the highest degree of respect should be given to the trial judge’s evaluation of the likelihood of the impairment of the impartiality of one or more jurors. As long as support for a mistrial order can be found in the trial record, no specific statement of manifest necessity need be made by the trial judge.14
Emphasis upon the trial judge’s discretion has an impact upon the cases in which it is the judge’s error, in granting sua sponte a mistrial or granting the prosecutor’s motion. The cases are in doctrinal disarray. Thus, in Gori v. United States,15 the Court permitted retrial of the defendant when the trial judge had, on his own motion and with no indication of the wishes of defense counsel, declared a mistrial because he thought the prosecutor’s line of questioning was intended to expose the defendant’s criminal record, which would have constituted prejudicial error. Although the Court thought that the judge’s action was an abuse of discretion, it approved retrial on the grounds that the judge’s decision had been taken for defendant’s benefit. This rationale was disapproved in the next case, in which the trial judge discharged the jury erroneously and in abuse of his discretion, because he disbelieved the prosecutor’s assurance that certain witnesses had been properly apprised of their constitutional rights.16 Refusing to permit retrial, the Court observed that the doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option [to go to the first jury and perhaps obtain an acquittal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.17 The later cases appear to accept Jorn as an example of a case where the trial judge acts irrationally or irresponsibly. But if the trial judge acts deliberately, giving prosecution and defense the opportunity to explain their positions, and according respect to defendant’s interest in concluding the matter before the one jury, then he is entitled to deference. This approach perhaps rehabilitates the result if not the reasoning in Gori and maintains the result and much of the reasoning of Jorn.18
Of course, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by a prosecutorial or judicial error.19 Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.20 In United States v. Dinitz,21 the trial judge had excluded defendant’s principal attorney for misbehavior and had then given defendant the option of recess while he appealed the exclusion, a mistrial, or continuation with an assistant defense counsel. Holding that the defendant could be retried after he chose a mistrial, the Court reasoned that, although the exclusion might have been in error, it was not done in bad faith to goad the defendant into requesting a mistrial or to prejudice his prospects for acquittal. The defendant’s choice, even though difficult, to terminate the trial and go on to a new trial should be respected and a new trial not barred. To hold otherwise would necessitate requiring the defendant to shoulder the burden and anxiety of proceeding to a probable conviction followed by an appeal, which if successful would lead to a new trial, and neither the public interest nor the defendant’s interests would thereby be served.
But the Court has also reserved the possibility that the defendant’s motion might be necessitated by prosecutorial or judicial overreaching motivated by bad faith or undertaken to harass or prejudice, and in those cases retrial would be barred. It was unclear what prosecutorial or judicial misconduct would constitute such overreaching,22 but, in Oregon v. Kennedy,23 the Court adopted a narrow intent test, so that [o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. Therefore, ordinarily, a defendant who moves for or acquiesces in a mistrial is bound by his decision and may be required to stand for retrial.
That a defendant may not be retried following an acquittal is the most fundamental rule in the history of double jeopardy jurisprudence.24 [T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’25 Although, in other areas of double jeopardy doctrine, consideration is given to the public-safety interest in having a criminal trial proceed to an error-free conclusion, no such balancing of interests is permitted with respect to acquittals, no matter how erroneous, no matter even if they were egregiously erroneous.26 Thus, an acquittal resting on the trial judge's misreading of the elements of an offense precludes further prosecution.27
The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment. This was firmly established in Kepner v. United States,28 which arose under a Philippines appeals system in which the appellate court could make an independent review of the record, set aside the trial judge’s decision, and enter a judgment of conviction.29 Previously, under the Due Process Clause, there was no barrier to state provision for prosecutorial appeals from acquittals.30 But there are instances in which the trial judge will dismiss the indictment or information without intending to acquit or in circumstances in which retrial would not be barred, and the prosecution, of course, has an interest in seeking on appeal to have errors corrected. Until 1971, however, the law providing for federal appeals was extremely difficult to apply and insulated from review many purportedly erroneous legal rulings,31 but in that year Congress enacted a new statute permitting appeals in all criminal cases in which indictments are dismissed, except in those cases in which the Double Jeopardy Clause prohibits further prosecution.32 In part because of the new law, the Court has dealt in recent years with a large number of problems in this area.
Little or no controversy accompanies the rule that once a jury has acquitted a defendant, government may not, through appeal of the verdict or institution of a new prosecution, place the defendant on trial again.33 Thus, the Court early held that, when the results of a trial are set aside because the first indictment was invalid or for some reason the trial’s results were voidable, a judgment of acquittal must nevertheless remain undisturbed.34
When a trial judge acquits a defendant, that action concludes the matter to the same extent that acquittal by jury verdict does.35 There is no possibility of retrial for the same offense.36 But it may be difficult at times to determine whether the trial judge’s action was in fact an acquittal or whether it was a dismissal or some other action, which the prosecution may be able to appeal or the judge may be able to reconsider.37 The question is whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.38 Thus, an appeal by the government was held barred in a case in which the deadlocked jury had been discharged, and the trial judge had granted the defendant’s motion for a judgment of acquittal under the appropriate federal rule, explicitly based on the judgment that the government had not proved facts constituting the offense.39 Even if, as happened in Sanabria v. United States,40 the trial judge erroneously excludes evidence and then acquits on the basis that the remaining evidence is insufficient to convict, the judgment of acquittal produced thereby is final and unreviewable.41
Some limited exceptions exist with respect to the finality of trial judge acquittal. First, because a primary purpose of the Due Process Clause is the prevention of successive trials and not of prosecution appeals per se, it is apparently the case that, if the trial judge permits the case to go to the jury, which convicts, and the judge thereafter enters a judgment of acquittal, even one founded upon his belief that the evidence does not establish guilt, the prosecution may appeal, because the effect of a reversal would be not a new trial but reinstatement of the jury’s verdict and the judgment thereon.42 Second, if the trial judge enters or grants a motion of acquittal, even one based on the conclusion that the evidence is insufficient to convict, then the prosecution may appeal if jeopardy had not yet attached in accordance with the federal standard.43
If, after jeopardy attaches, a trial judge grants a motion for mistrial, ordinarily the defendant is subject to retrial;44 if, after jeopardy attaches, but before a jury conviction occurs, the trial judge acquits, perhaps on the basis that the prosecution has presented insufficient evidence or that the defendant has proved a requisite defense such as insanity or entrapment, the defendant is not subject to retrial.45 This is so even where the trial court's ruling on the sufficiency of the evidence is based on an erroneous interpretation of the statute defining the elements of the offense.46 However, it may be that the trial judge will grant a motion to dismiss that is neither a mistrial nor an acquittal, but is instead a termination of the trial in defendant’s favor based on some decision not relating to his factual guilt or innocence, such as prejudicial preindictment delay.47 The prosecution may not simply begin a new trial but must seek first to appeal and overturn the dismissal, a course that was not open to federal prosecutors until enactment of the Omnibus Crime Control Act in 1971.48 That law has resulted in tentative and uncertain rulings with respect to when such dismissals may be appealed and further proceedings directed. In the first place, it is unclear in many instances whether a judge’s ruling is a mistrial, a dismissal, or an acquittal.49 In the second place, because the Justices have such differing views about the policies underlying the Double Jeopardy Clause, determinations of which dismissals preclude appeals and further proceedings may result from shifting coalitions and from revised perspectives. Thus, the Court first fixed the line between permissible and impermissible appeals at the point at which further proceedings would have had to take place in the trial court if the dismissal were reversed. If the only thing that had to be done was to enter a judgment on a guilty verdict after reversal, appeal was constitutional and permitted under the statute;50 if further proceedings, such as continuation of the trial or some further factfinding, was necessary, appeal was not permitted.51 Now, but by a close division of the Court, the determining factor is not whether further proceedings must be had but whether the action of the trial judge, whatever its label, correct or not, resolved some or all of the factual elements of the offense charged in defendant’s favor, whether, that is, the court made some determination related to the defendant’s factual guilt or innocence.52 Such dismissals relating to guilt or innocence are functional equivalents of acquittals, whereas all other dismissals are functional equivalents of mistrials.
A basic purpose of the Double Jeopardy Clause is to protect a defendant against a second prosecution for the same offense after conviction.53 It is settled that no man can be twice lawfully punished for the same offense.54 Of course, the defendant’s interest in finality, which informs much of double jeopardy jurisprudence, is quite attenuated following conviction, and he will most likely appeal, whereas the prosecution will ordinarily be content with its judgment.55 The situation involving re-prosecution ordinarily arises, therefore, only in the context of successful defense appeals and controversies over punishment.
Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, the assumption being made in the first case on the subject that, by appealing, a defendant has waived his objection to further prosecution by challenging the original conviction.56 Although it has characterized the waiver theory as totally unsound and indefensible,57 the Court has been hesitant in formulating a new theory in maintaining the practice.58
An exception to full application of the retrial rule exists, however, when defendant on trial for an offense is convicted of a lesser offense and succeeds in having that conviction set aside. Thus, in Green v. United States,59 the defendant had been placed on trial for first degree murder but convicted of second degree murder; the Court held that, following reversal of that conviction, he could not be tried again for first degree murder, although he certainly could be for second degree murder, on the theory that the first verdict was an implicit acquittal of the first degree murder charge.60 Even though the Court thought the jury’s action in the first trial was clearly erroneous, the Double Jeopardy Clause required that the jury’s implicit acquittal be respected.61
Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States,62 the appellate court set aside the defendant’s conviction on the basis that the prosecution had failed to rebut defendant’s proof of insanity. In directing that the defendant could not be retried, the Court observed that if the trial court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. It should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.63 The policy underlying the clause of not allowing the prosecution to make repeated efforts to convict forecloses giving the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. On the other hand, if a reviewing court reverses a jury conviction because of its disagreement on the weight rather than the sufficiency of the evidence, retrial is permitted; the appellate court’s decision does not mean that acquittal was the only proper course, hence the deference required for acquittals is not merited.64 Also, the Burks rule does not bar reprosecution following a reversal based on erroneous admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict.65
1. The rule traces back to United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). See also Kepner v. United States, 195 U.S. 100 (1904); Downum v. United States, 372 U.S. 734 (1963) (trial terminated just after jury sworn but before any testimony taken). In Crist v. Bretz, 437 U.S. 28 (1978), the Court held this standard of the attachment of jeopardy was at the core of the clause and it therefore binds the States. But see id. at 40 (Justice Powell dissenting). An accused is not put in jeopardy by preliminary examination and discharge by the examining magistrate, Collins v. Loisel, 262 U.S. 426 (1923), by an indictment which is quashed, Taylor v. United States, 207 U.S. 120, 127 (1907), or by arraignment and pleading to the indictment. Bassing v. Cady, 208 U.S. 386, 391–92 (1908). A defendant may be tried after preliminary proceedings that present no risk of final conviction. E.g., Ludwig v. Massachusetts, 427 U.S. 618, 630–32 (1976) (conviction in prior summary proceeding does not foreclose trial in a court of general jurisdiction, where defendant has absolute right to demand a trial de novo and thus set aside the first conviction); Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not violated by procedure under which masters hear evidence and make preliminary recommendations to juvenile court judge, who may confirm, modify, or remand).
2. Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. United States, 372 U.S. 734 (1963). Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. Arizona v. Washington, 434 U.S. 497, 503–05 (1978).
3. Wade v. Hunter, 336 U.S. 684, 689 (1949).
4. United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion).
5. Arizona v. Washington, 434 U.S. 497, 503–05 (1978); Crist v. Bretz, 437 U.S. 28, 35–36 (1978). See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 86–97.
6. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
7. United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); Logan v. United States, 144 U.S. 263 (1892). See Renico v. Lett, 559 U.S. 766 (2010) (in a habeas review case, discussing the broad deference given to trial judge's decision to declare a mistrial because of jury deadlock). See also, Yeager v. United States, 557 U.S. 110, 118 (2009); Blueford v. Arkansas, 566 U.S. 599 (2012) (reprosecution for a greater offense allowed following jury deadlock on a lesser included offense).
8. Simmons v. United States, 142 U.S. 148 (1891) (juror’s impartiality became questionable during trial); Thompson v. United States, 155 U.S. 271 (1884) (discovery during trial that one of the jurors had served on the grand jury that had indicted defendant and was therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949) (court-martial discharged because enemy advancing on site).
9. Illinois v. Somerville, 410 U.S. 458, 463 (1973).
10. 410 U.S. at 464.
11. Downum v. United States, 372 U.S. 734 (1963).
12. Illinois v. Somerville, 410 U.S. 458, 464–65, 468–69 (1973).
13. 434 U.S. 497 (1978).
14. Manifest necessity characterizes the burden the prosecutor must shoulder in justifying retrial. 434 U.S. at 505–06. But necessity cannot be interpreted literally; it means rather a high degree of necessity, and some instances, such as hung juries, easily meet that standard. Id. at 506–07. In a situation like that presented in this case, great deference must be paid to the trial judge’s decision because he was in the best position to determine the extent of the possible bias, having observed the jury’s response, and to respond by the course he deems best suited to deal with it. Id. at 510–14. Here, the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent’s interest in having the trial concluded in a single proceeding. . . . [H]e exercised ‘sound discretion.’ . . . Id. at 516.
15. 367 U.S. 364 (1961). See also United States v. Tateo, 377 U.S. 463 (1964) (reprosecution permitted after the setting aside of a guilty plea found to be involuntary because of coercion by the trial judge).
16. United States v. Jorn, 400 U.S. 470, 483 (1971).
17. 400 U.S. at 485. The opinion of the Court was by a plurality of four, but two other Justices joined it after first arguing that jurisdiction was lacking to hear the government’s appeal.
18. Arizona v. Washington, 434 U.S. 497, 514, 515–16 (1978). See also Illinois v. Somerville, 410 U.S. 458, 462, 465–66, 469–71 (1973) (discussing Gori and Jorn.)
19. United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion).
20. United States v. Scott, 437 U.S. 82, 93 (1978).
21. 424 U.S. 600 (1976). See also Lee v. United States, 432 U.S. 23 (1977) (defendant’s motion to dismiss because the information was improperly drawn made after opening statement and renewed at close of evidence was functional equivalent of mistrial and when granted did not bar retrial, Court emphasizing that defendant by his timing brought about foreclosure of opportunity to stay before the same trial).
22. Compare United States v. Dinitz, 424 U.S. 600, 611 (1976), with United States v. Tateo, 377 U.S. 463, 468 n.3 (1964).
23. 456 U.S. 667, 676 (1982). The Court thought a broader standard requiring an evaluation of whether acts of the prosecutor or the judge prejudiced the defendant would be unmanageable and would be counterproductive because courts would be loath to grant motions for mistrials knowing that reprosecution would be barred. Id. at 676–77. The defendant had moved for mistrial after the prosecutor had asked a key witness a prejudicial question. Four Justices concurred, noting that the question did not constitute overreaching or harassment and objecting both to the Court’s reaching the broader issue and to its narrowing the exception. Id. at 681.
24. United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).
25. United States v. Scott, 437 U.S. 82, 91 (1978) (quoting Green v. United States, 355 U.S. 184, 188 (1957)). For the conceptually related problem of trial for a separate offense arising out of the same transaction, see discussion under The ‘Same Transaction’ Problem, infra.
26. Burks v. United States, 437 U.S. 1, 16 (1978); Fong Foo v. United States, 369 U.S. 141, 143 (1962). For evaluation of those interests of the defendant that might support the absolute rule of finality, and rejection of all such interests save the right of the jury to acquit against the evidence and the trial judge’s ability to temper legislative rules with leniency, see Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 122–37.
27. Evans v. Michigan, 568 U.S. 313 (2013) (acquittal after judge ruled the prosecution failed to prove that a burned building was not a dwelling, but such proof was not legally required for the arson offense charged).
28. 195 U.S. 100 (1904). The case interpreted not the constitutional provision but a statutory provision extending double jeopardy protection to the Philippines. The Court has described the case, however, as correctly stating constitutional principles. See, e.g., United States v. Wilson, 420 U.S. 332, 346 n.15 (1975); United States v. DiFrancesco, 449 U.S. 117, 113 n.13 (1980).
29. In dissent, Justice Holmes, joined by three other Justices, propounded a theory of continuing jeopardy, so that until the case was finally concluded one way or another, through judgment of conviction or acquittal, and final appeal, there was no second jeopardy no matter how many times a defendant was tried. 195 U.S. at 134. The Court has numerous times rejected any concept of continuing jeopardy. E.g., Green v. United States, 355 U.S. 184, 192 (1957); United States v. Wilson, 420 U.S. 332, 351–53 (1975); Breed v. Jones, 421 U.S. 519, 533–35 (1975).
30. Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no longer viable. Cf. Greene v. Massey, 437 U.S. 19 (1978).
31. The Criminal Appeals Act of 1907, 34 Stat. 1246, was a failure . . . , a most unruly child that has not improved with age. United States v. Sisson, 399 U.S. 267, 307 (1970). See also United States v. Oppenheimer, 242 U.S. 85 (1916); Fong Foo v. United States, 369 U.S. 141 (1962).
32. Title III of the Omnibus Crime Control Act, Pub. L. No. 91-644, 84 Stat. 1890, 18 U.S.C. § 3731. Congress intended to remove all statutory barriers to governmental appeal and to allow appeals whenever the Constitution would permit, so that interpretation of the statute requires constitutional interpretation as well. United States v. Wilson, 420 U.S. 332, 337 (1975). See Sanabria v. United States, 437 U.S. 54, 69 n.23 (1978), and id. at 78 (Justice Stevens concurring).
33. What constitutes a jury acquittal may occasionally be uncertain. In Blueford v. Arkansas, 566 U.S. 599 (2012), the defendant was charged with capital murder in an acquittal-first jurisdiction, in which the jury must unanimously agree that a defendant is not guilty of a greater offense before it may begin to consider a lesser included offense. After several hours of deliberations, the foreperson of the jury stated in open court that the jury was unanimously against conviction for capital murder and the lesser included offense of first-degree murder, but was deadlocked on manslaughter, the next lesser included offense. After further deliberations, the judge declared a mistrial because of a hung jury. Six Justices of the Court subsequently held that the foreperson's statement on capital murder and first-degree murder lacked the necessary finality of an acquittal, and found that Double Jeopardy did not bar a subsequent prosecution for those crimes. Three dissenting Justices held that Double Jeopardy required a partial verdict of acquittal on the greater offenses under the circumstances.
In Schiro v. Farley, 510 U.S. 222 (1994), the Court ruled that a jury’s action in leaving the verdict sheet blank on all but one count did not amount to an acquittal on those counts, and that consequently conviction on the remaining count, alleged to be duplicative of one of the blank counts, could not constitute double jeopardy. In any event, the Court added, no successive prosecution violative of double jeopardy could result from an initial sentencing proceeding in the course of an initial prosecution.
34. In Ball v. United States, 163 U.S. 662 (1896), three defendants were placed on trial, Ball was acquitted and the other two were convicted, the two appealed and obtained a reversal on the ground that the indictment had been defective, and all three were again tried and all three were convicted. Ball’s conviction was set aside as violating the clause; the trial court’s action was not void but only voidable, and Ball had taken no steps to void it while the government could not take such action. Similarly, in Benton v. Maryland, 395 U.S. 784 (1969), the defendant was convicted of burglary but acquitted of larceny; the conviction was set aside on his appeal because the jury had been unconstitutionally chosen. He was again tried and convicted of both burglary and larceny, but the larceny conviction was held to violate the Double Jeopardy Clause. On the doctrine of constructive acquittals by conviction of a lesser included offense, see discussion infra under Reprosecution After Reversal on Defendant’s Appeal.
35. United States v. Martin Linen Supply Co., 430 U.S. 564, 570–72 (1977); Sanabria v. United States, 437 U.S. 54, 63–65 (1978); Finch v. United States, 433 U.S. 676 (1977).
36. In Fong Foo v. United States, 369 U.S. 141 (1962), the Court acknowledged that the trial judge’s action in acquitting was based upon an egregiously erroneous foundation, but it was nonetheless final and could not be reviewed. Id. at 143.
37. As a general rule a state may prescribe that a judge's midtrial determination of the sufficiency of the prosecution's proof may be reconsidered. Smith v. Massachusetts, 543 U.S. 462 (2005) (Massachusetts had not done so, however, so the judge's midtrial acquittal on one of three counts became final for double jeopardy purposes when the prosecution rested its case).
38. United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).
39. 430 U.S. at 570–76. See also United States v. Scott, 437 U.S. 82, 87–92 (1978); Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis of insufficiency of evidence is acquittal).
40. 437 U.S. 54 (1978).
41. See also Smith v. Massachusetts, 543 U.S. 462 (2005) (acquittal based on erroneous interpretation of precedent).
42. In United States v. Wilson, 420 U.S. 332 (1975), following a jury verdict to convict, the trial judge granted defendant’s motion to dismiss on the ground of prejudicial delay, not a judgment of acquittal; the Court permitted a government appeal because reversal would have resulted in reinstatement of the jury’s verdict, not in a retrial. In United States v. Jenkins, 420 U.S. 358, 365 (1975), the Court assumed, on the basis of Wilson, that a trial judge’s acquittal of a defendant following a jury conviction could be appealed by the government because, again, if the judge’s decision were set aside there would be no further proceedings at trial. In overruling Jenkins in United States v. Scott, 437 U.S. 82 (1978), the Court noted the assumption and itself assumed that a judgment of acquittal bars appeal only when a second trial would be necessitated by reversal. Id. at 91 n.7.
43. Serfass v. United States, 420 U.S. 377 (1975) (after request for jury trial but before attachment of jeopardy judge dismissed indictment because of evidentiary insufficiency; appeal allowed); United States v. Sanford, 429 U.S. 14 (1976) (judge granted mistrial after jury deadlock, then four months later dismissed indictment for insufficient evidence; appeal allowed, because granting mistrial had returned case to pretrial status).
44. See Reprosecution After Reversal on Defendant’s Appeal, supra.
45. See Acquittal by the Trial Judge, supra.
46. See Evans v. Michigan, 568 U.S. 313 (2013).
47. United States v. Wilson, 420 U.S. 332 (1975) (preindictment delay); United States v. Jenkins, 420 U.S. 358 (1975) (determination of law based on facts adduced at trial; ambiguous whether judge’s action was acquittal or dismissal); United States v. Scott, 437 U.S. 82 (1978) (preindictment delay).
48. See United States v. Scott, 437 U.S. 82, 84–86 (1978); United States v. Sisson, 399 U.S. 267, 291–96 (1970).
49. Cf. Lee v. United States, 432 U.S. 23 (1977).
50. United States v. Wilson, 420 U.S. 332 (1975) (after jury guilty verdict, trial judge dismissed indictment on grounds of preindictment delay; appeal permissible because upon reversal all trial judge had to do was enter judgment on the jury’s verdict).
51. United States v. Jenkins, 420 U.S. 358 (1975) (after presentation of evidence in bench trial, judge dismissed indictment; appeal impermissible because if dismissal was reversed there would have to be further proceedings in the trial court devoted to resolving factual issues going to elements of offense charged and resulting in supplemental findings).
52. United States v. Scott, 437 U.S. 82 (1978) (at close of evidence, court dismissed indictment for preindictment delay; ruling did not go to determination of guilt or innocence, but, like a mistrial, permitted further proceedings that would go to factual resolution of guilt or innocence). The Court thought that double jeopardy policies were resolvable by balancing the defendant’s interest in having the trial concluded in one proceeding against the government’s right to one complete opportunity to convict those who have violated the law. The defendant chose to move to terminate the proceedings and, having made a voluntary choice, is bound to the consequences, including the obligation to continue in further proceedings. Id. at 95–101. The four dissenters would have followed Jenkins, and accused the Court of having adopted too restrictive a definition of acquittal. Their view is that the rule against retrials after acquittal does not, as the Court believed, safeguard determination of innocence; rather, it is that a retrial following a final judgment for the accused necessarily threatens intolerable interference with the constitutional policy against multiple trials. Id. at 101, 104 (Justices Brennan, White, Marshall, and Stevens). They would, therefore, treat dismissals as functional equivalents of acquittals, whenever further proceedings would be required after reversals.
53. North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
54. Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).
55. A prosecutor dissatisfied with the punishment imposed upon the first conviction might seek another trial in order to obtain a greater sentence. Cf. Ciucci v. Illinois, 356 U.S. 571 (1958) (under Due Process Clause, Double Jeopardy Clause not then applying to states).
56. Ball v. United States, 163 U.S. 662 (1896). The English rule precluded a new trial in these circumstances, and circuit Justice Story adopted that view. United States v. Gilbert, 25 F. Cas. 1287 (No. 15204) (C.C.D.Mass. 1834). The history is briefly surveyed in Justice Frankfurter’s dissent in Green v. United States, 355 U.S. 184, 200–05 (1957).
57. Green v. United States, 355 U.S. 184, 197 (1957). The more recent cases continue to reject a waiver theory. E.g., United States v. Dinitz, 424 U.S. 600, 609 n.11 (1976); United States v. Scott, 437 U.S. 82, 99 (1978).
58. Justice Holmes, dissenting in Kepner v. United States, 195 U.S. 100, 134 (1904), rejected the waiver theory and propounded a theory of continuing jeopardy, which also continues to be rejected. See discussion, supra. In some cases, a concept of election by the defendant has been suggested, United States v. Scott, 437 U.S. 82, 93 (1978); Jeffers v. United States, 432 U.S. 137, 152–54 (1977), but it is not clear how this formulation might differ from waiver. Chief Justice Burger has suggested that probably a more satisfactory explanation for permissibility of retrial in this situation lies in analysis of the respective interests involved, Breed v. Jones, 421 U.S. 519, 533–35 (1975), and a determination that on balance the interests of both prosecution and defense are well served by the rule. See United States v. Tateo, 377 U.S. 463, 466 (1964); Tibbs v. Florida, 457 U.S. 31, 39–40 (1982).
59. 355 U.S. 184 (1957).
60. The decision necessarily overruled Trono v. United States, 199 U.S. 521 (1905), although the Court purported to distinguish the decision. Green v. United States, 355 U.S. 184, 194–97 (1957). See also Brantley v. Georgia, 217 U.S. 284 (1910) (no due process violation where defendant is convicted of higher offense on second trial).
61. See also Price v. Georgia, 398 U.S. 323 (1970). The defendant was tried for murder and was convicted of involuntary manslaughter. He obtained a reversal, was again tried for murder, and again convicted of involuntary manslaughter. Acknowledging that, after reversal, Price could have been tried for involuntary manslaughter, the Court nonetheless reversed the second conviction because he had been subjected to the hazard of twice being tried for murder, in violation of the Double Jeopardy Clause, and the effect on the jury of the murder charge being pressed could have prejudiced him to the extent of the second conviction. But cf. Morris v. Mathews, 475 U.S. 237 (1986) (inadequate showing of prejudice resulting from reducing jeopardy-barred conviction for aggravated murder to non-jeopardy-barred conviction for first degree murder). To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different. Id. at 247.
62. 437 U.S. 1 (1978).
63. Id. at 10–11. See also Greene v. Massey, 437 U.S. 19 (1978) (remanding for determination whether appellate majority had reversed for insufficient evidence or whether some of the majority had based decision on trial error); Hudson v. Louisiana, 450 U.S. 40 (1981) (Burks applies where appellate court finds some but insufficient evidence adduced, not only where it finds no evidence). Burks was distinguished in Justices of Boston Mun. Court v. Lydon, 466 U.S. 294 (1984), which held that a defendant who had elected to undergo a bench trial with no appellate review but with the right of trial de novo before a jury (and with appellate review available) could not bar trial de novo and reverse his bench trial conviction by asserting that the conviction had been based on insufficient evidence. The two-tiered system in effect gave the defendant two chances at acquittal; under those circumstances jeopardy was not terminated by completion of the first entirely optional stage.
64. Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5-to-4, the dissent arguing that weight and insufficiency determinations should be given identical Double Jeopardy Clause treatment. Id. at 47 (Justices White, Brennan, Marshall, and Blackmun).
65. Lockhart v. Nelson, 488 U.S. 33 (1988) (state may reprosecute under habitual offender statute even though evidence of a prior conviction was improperly admitted; at retrial, state may attempt to establish other prior convictions as to which no proof was offered at prior trial).
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