United States v. Scott

437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65, 1978 U.S. LEXIS 109

Opinions

Mr. Justice Nehnquist

delivered the opinion of the Court.

On March 5, 1975, respondent, a member of the police force in Muskegon, Mich., was charged in a three-count indictment with distribution of various narcotics. Both before his trial in the United States District Court for the Western District of Michigan, and twice during the trial, respondent moved to dismiss the two counts of the indictment which concerned transactions that took place during the preceding September, on the ground that his defense had been prejudiced by prein-dictment delay. At the close of all the evidence, the court granted respondent’s motion. Although the court did not explain its reasons for dismissing the second count, it explicitly concluded that respondent had “presented sufficient proof of prejudice with respect to Count I.” App. to Pet. for Cert. 8a. The court submitted the third count to the jury, which returned a verdict of not guilty.

The Government sought to appeal the dismissals of the first two counts to the United States Court of Appeals for the Sixth Circuit. That court, relying on our opinion in United States v. Jenkins, 420 U. S. 358 (1975), concluded that any further prosecution of respondent was barred by the Double Jeopardy Clause of the Fifth Amendment, and therefore dismissed the appeal. 544 F. 2d 903 (1976). The Government has sought review in this Court only with regard to the dismissal of the first count. We granted certiorari to give further consideration to the applicability of the Double Jeopardy Clause to Government appeals from orders granting defense motions to terminate a trial before verdict. We now reverse.

I

The problem presented by this case could not have arisen during the first century of this Court’s existence. The Court has long taken the view that the United States has no right of appeal in a criminal case, absent explicit statutory authority. United States v. Sanges, 144 U. S. 310 (1892). Such authority was not provided until the enactment of the Criminal Appeals Act, Act of Mar. 2, 1907, ch. 2564, 34 Stat. 1246, which permitted the United States to seek a writ of error in this Court from any decision dismissing an indictment on the basis of “the invalidity, or construction of the statute upon which the indictment is founded.” Our consideration of Government appeals over the ensuing years ordinarily focused upon the intricacies of the Act and its amendments.¹ In 1971, however, Congress adopted the current language of the Act, permitting Government appeals from any decision dismissing an indictment, “except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” 18 U. S. C. §3731 (1976 ed.). Soon thereafter, this Court remarked in .a footnote., with more optimism than prescience that “[t]he end of our problems with this Act is finally in sight.” United States v. Weller, 401 U. S. 254, 255 n. 1 (1971). For in fact the 1971 amendment did not end the debate over appeals by the Government in'', criminal cases; it simply shifted the focus of the debate from j issues of statutory construction to issues as to the scope and J meaning of the Double Jeopardy Clause. • >

In our first encounter with the new statute, we concluded that “Congress intended to remove all statutory, barriers to Government appeals and to allow appeals whenever the Constitution would permit.” United States v. Wilson, 420 U. S. 332, 337 (1975). Since up to that point Government appeals had been subject to statutory restrictions independent of the Double Jeopardy Clause, our previous cases construing the statute proved to be of little assistance in determining when the Double Jeopardy Clause of the Fifth Amendment would prohibit further prosecution. A detailed canvass of the history of the double jeopardy principles in English and American law led us to conclude that the Double Jeopardy Clause was primarily “directed at the threat of multiple prosecutions,” and posed no bar to Government appeals “where those appeals would not require a new trial.” Id., at 342. We accordingly held in Jenkins, supra, at 370, that, whether or not a dismissal of an indictment after jeopardy had attached amounted to an acquittal on the merits, the Government had no right to appeal, because “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand.” ²

If Jenkins is a correct statement of the law, the judgment of the Court of Appeals relying on that decision, as it was bound to do, would in all likelihood have to be affirmed.³ Yet, though our assessment of the history and meaning of the Double Jeopardy Clause in Wilson, Jenkins, and Serfass v. United States, 420 U. S. 377 (1975), occurred only three Terms ago, our vastly increased exposure to the various facets of the Double Jeopardy Clause has now convinced us that Jenkins was wrongly decided. It placed an unwarrantedly great emphasis on the defendant’s right to have his guilt decided by the first jury empaneled to try him so as to include those cases where the defendant himself seeks to terminate the trial before verdict on grounds unrelated to factual guilt or innocence. We have therefore decided to overrule Jenkins, and thus to reverse the judgment of the Court of Appeals in this case.

II

The origin and history of the Double Jeopardy Clause are hardly a matter of dispute. See generally Wilson; supra, at 339-340; Green v. United States, 355 U. S. 184, 187-188 (1957); id., at 200 (Frankfurter, J., dissenting). The constitutional provision had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon. These three pleas prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense. As this Court has described the purpose underlying the prohibition against double jeopardy:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to malee repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green, supra, at 187-188.

These historical purposes are necessarily general in nature, and their application has come to abound in often subtle distinctions which cannot by any means all be traced to the original three common-law pleas referred to above.

Part of the difficulty arises from the development of other protections for criminal defendants in the years since the adoption of the Bill of Rights. At the time the Fifth Amendment was adopted, its principles were easily applied, since most criminal prosecutions proceeded to final judgment, and neither the United States nor the defendant had any right to appeal an adverse verdict. See Act of Sept. 24, 1789, ch. 20, § 22, 1 Stat. 84. The verdict in such a case was unquestionably final, and could be raised in bar against any further prosecution for the same offense.

Soon thereafter, Congress made provision for review of certain criminal cases by this Court, but only upon a certificate of division from the circuit court, and not at the instigation of the defendant. Act of Apr. 29, 1802, ch. 31, § 6, 2 Stat. 159. It was not until 1889 that Congress permitted criminal defendants to seek a writ of error in this Court, and then only in capital cases. Act of Feb. 6, 1889, ch. 113, § 6, 25 Stat. 656.⁴ Only then did it become necessary for this Court to deal with the issues presented by the challenge of verdicts on appeal.

And, in the very first case presenting the issues, United States v. Ball, 163 U. S. 662 (1896), the Court established principles that have been adhered to ever since. Three persons had been tried together for murder; two were convicted, the other acquitted. This Court reversed the convictions, finding the indictment fatally defective, Ball v. United States, 140 U. S. 118 (1891), whereupon all three defendants were tried again. This time all three were convicted and they again sought review here. This Court held that the Double Jeopardy Clause precluded further prosecution of the defendant who had been acquitted at the original trial⁵ but that it posed no such bar to the prosecution of those defendants who had been convicted in the earlier proceeding. The Court disposed of their objection almost peremptorily:

“Their plea of former conviction cannot be sustained, because upon a writ of error sued out by themselves the judgment and sentence against them were reversed, and the indictment ordered to be dismissed. ... [I] t is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted.” 163 U. S., at 671-672.

Although Ball firmly established that a successful appeal of a conviction precludes a subsequent plea of double jeopardy, the opinion shed no light on whether a judgment of acquittal could be reversed on appeal consistently with the Double Jeopardy Clause. Because of the statutory restrictions upon Government appeals in criminal cases, this Court in the years after Ball was faced with that question only in unusual circumstances, such as were present in Kepner v. United States, 195 U. S. 100 (1904). That case arose out of a criminal prosecution in the Philippine Islands, to which the principles of the Double Jeopardy Clause had been expressly made applicable by Act of Congress. Although the defendant had been acquitted in his original trial, traditional Philippine procedure provided for a trial de novo upon appeal. This Court, in reversing the resulting conviction, remarked:

“The court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense . . . .” Id., at 133.⁶

More than 50 years later, in Fong Foo v. United States, 369 U. S. 141 (1962), this Court reviewed the issuance of a writ of mandamus by the Court of Appeals for the First Circuit instructing a District Court to vacate certain judgments of acquittal. Although indicating its agreement with the Court of Appeals that the judgments had been entered erroneously, this Court nonetheless held that a second trial was barred by the Double Jeopardy Clause. Id., at 143. Only last Term, this Court relied upon these precedents in United States v. Martin Linen Supply Co., 430 U. S. 564 (1977), and held that the Government could not appeal the granting of a motion to acquit pursuant to Fed. Rule Crim. Proc. 29 where a second trial would be required upon remand. The Court, quoting language in Ball, supra, at 671, stated: “Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’ ” 430 U. S., at 571.

These, then, at least, are two venerable principles of double jeopardy jurisprudence. The successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, Burks v. United States, ante, p. 1, poses no bar to further prosecution on the same charge. A judgment of acquittal, whether based on a jury-verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.⁷ What may seem superficially to be a disparity in the rules governing a defendant’s liability to be tried again is explainable by reference to the underlying purposes of the Double Jeopardy Clause. As Kepner and Fong Foo illustrate, the 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.” Oreen, 356' U. S., at 188. On the other hand, to require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect. The common sense of the matter is most pithily, if not most elegantly, expressed in the words of Mr. Justice McLean on circuit in United States v. Keen, 26 F. Cas. 686 (No. 15,510) (CC Ind. 1839). He vigorously rejected the view that the Double Jeopardy Clause prohibited any new trial after the setting aside of a judgment of conviction against the defendant or that it “guarantees to him the right of being hung, to protect him from the danger of a second trial.” Id., at 690.

Ill

Although the primary purpose of the Double Jeopardy Clause was to protect the integrity of a final judgment, see Crist v. Bretz, ante, at 33, this Court has also developed a body of law guarding the separate but related interest of a defendant in avoiding multiple prosecutions even where no final determination of guilt or innocence has been made. Such interests may be involved in two different situations: the first, in which the trial judge declares a mistrial; the second, in which the trial judge terminates the proceedings favorably to the defendant on a basis not related to factual guilt or innocence.

A

When a trial court declares a mistrial, it all but invariably contemplates that the prosecutor will be permitted to proceed anew notwithstanding the defendant’s plea of double jeopardy. See Lee v. United States, 432 U. S. 23, 30 (1977). Such a motion may be granted upon the initiative of either party or upon the court’s own initiative. The fact that the trial judge contemplates that there will be a new trial is not conclusive on the issue of double jeopardy; in passing on the propriety of a declaration of mistrial granted at the behest of the prosecutor or on the court’s own motion, this Court has balanced “the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him,” Downum v. United States, 372 U. S. 734, 736 (1963), against the public interest in insuring that justice is meted out to offenders.

Our very first encounter with this situation came in United States v. Perez, 9 Wheat. 579 (1824), in which the trial judge' had on his own motion declared a mistrial because of the jury’s inability to reach a verdict. The Court-said- that trial judges might declare mistrials “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” Id., at 580. In our recent decision in Arizona v. Washington, 434 U. S. 497 (1978), we reviewed this Court’s attempts to give content to the term “manifest necessity.” That case, like Doumum, supra,⁸,.arose from a motion of the prosecution for a mistrial, and we noted that the trial court’s discretion must be exercised with a, careful regard for the interests first described in United States v. Perez. Arizona v. Washington, supra, at 514-516.

Where, on the other hand, a defendant successfully se.eks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution. “[A] motion by the defendant-for -mistrial is ordinarily assumed to remove any barrier to.xeprosecution, even if the defendant’s motion is necessitated by a prosecu-torial or judicial error.” United States v. Jorn, 400 U. S. 470, 485 (1971) (opinion of Harlan, J.). 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. “The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” United States v. Dinitz, 424 U. S. 600, 609 (1976). But “[t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.” Id., at 611.

B

We turn now to the relationship between the Double Jeopardy Clause and reprosecution of a defendant who has successfully obtained not a mistrial but a termination of the trial in his favor before any determination of factual guilt or innocence. Unlike the typical mistrial, the granting of a motion such as this obviously contemplates that the proceedings will terminate then and there in favor of the defendant. The prosecution, if it wishes to reinstate the proceedings in the face of such a ruling, ordinarily must seek reversal of the decision of the trial court.

The Criminal Appeals Act, 18 U. S. C. § 3731 (1976 ed.), as previously noted, makes appealability of a ruling favorable to the defendant depend upon whether further proceedings upon reversal would be barred by the Double Jeopardy Clause. Jenkins, 420 U. S., at 370, held that, regardless of the character of the midtrial termination, appeal was barred if “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand.” However, only last Term, in Lee, supra, the Government was permitted to institute a second prosecution after a midtrial dismissal of an indictment. The Court found the circumstances presented by that case “functionally indistinguishable from a declaration of mistrial.” 432 U. S., at 31. Thus, Lee demonstrated that, at least in some cases, the dismissal of an indictment may be treated on the same basis as the declaration of a mistrial.

In the present case, the District Court’s dismissal of the first count of the indictment was based upon a claim of prein-dictment delay and not on the court’s conclusion that the Government had not produced sufficient evidence to establish the guilt of the defendant. Respondent Scott points out quite correctly that he had moved to dismiss the indictment on this ground prior to trial, and that had the District Court chosen to grant it at that time the Government could have appealed the ruling under our holding in Serfass v. United States, 420 U. S. 377 (1975). He also quite correctly points out that jeopardy had undeniably “attached” at the time the District Court terminated the trial in his favor; since a successful Government appeal would require further proceedings in the District Court leading to a factual resolution of the issue of guilt or innocence, Jenkins bars the Government’s appeal. However, our growing experience with Government appeals convinces us that we must re-examine the rationale of Jenkins in light of Lee, Martin Linen, and other recent expositions of the Double Jeopardy Clause.

IV

Our decision in Jenkins was based upon our perceptions of the underlying purposes of the Double Jeopardy Clause, see supra, at 87:

“ ‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity ....’” Jenkins, supra, at 370, quoting Green, 355 U. S., at 187.

Upon fuller consideration, we are now of the view that this language from Green, while entirely appropriate in the circumstances of that opinion, is not a principle which can be expanded to include situations in which the defendant is responsible for the second prosecution. It is quite true that the Government with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense. This truth is expressed in the three common-law pleas of autrefois acquit, autrefois convict, and pardon, which lie at the core of the area protected by the Double Jeopardy Clause. As we have recognized in cases from United States v. Ball, 163 U. S. 662 (1896), to Sanabria v. United States, ante, p. 54, a defendant once acquitted may not be again subjected to trial without violating the Double Jeopardy Clause.

But that situation is obviously a far cry from the present case, where the Government was quite willing to continue with its production of evidence to show the defendant guilty before the jury first empaneled to try him, but the defendant elected to seek termination of the trial on grounds unrelated to guilt or innocence. This is scarcely a picture of an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who chooses to avoid conviction and imprisonment, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.

We have previously noted that “the trial judge’s characterization of his own action cannot control the classification of the action.” Jorn, 400 U. S., at 478 n. 7 (opinion of Harlan, J.), citing United States v. Sisson, 399 U. S. 267, 290 (1970). See also Martin Linen, 430 U. S., at 571; Wilson, 420 U. S., at 336. Despite respondent’s contentions, an appeal is not barred simply because a ruling in favor of a defendant “is based upon facts outside the face of the indictment,” id., at 348, or because it “is granted on the ground . . . that the defendant simply cannot be convicted of the offense charged,” Lee, 432 U. S., at 30. Rather, a defendant is acquitted only when “the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.” Martin Linen, supra, at 571. Where the court, before the' jury returns a verdict, enters a judgment of acquittal pursuant to Fed. Rule Crim. Proc. 29, appeal will, be barred, only when “it is plain that the District Court . . . evaluated the Government’s evidence and determined that it was legally] insufficient to sustain a conviction.”., 430 U. S., at 572.⁹

Our opinion in Burks necessarily holds that there has been a “failure of proof,” ante, at 16, requiring an acquittal when the Government does not submit sufficient evidence to rebut a defendant’s essentially factual defense of insanity, though it may otherwise be entitled to have its case submitted to the jury. The defense of insanity, like the defense of entrapment, arises from “the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense,” United States v. Russell, 411 U. S. 423, 435 (1973), where other facts established to the satisfaction of the trier of fact provide a legally adequate justification for otherwise criminal acts.¹⁰ Such a factual finding does “necessarily establish the criminal defendant’s lack of criminal culpability,” post, at 106 (Brennan, J., dissenting), under the existing law; the fact that “the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles,” ibid., affects the accuracy of that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.¹¹

We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. We do not thereby adopt the doctrine of “waiver” of double jeopardy rejected in Green.12, Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. In Green the question of the defendant’s factual guilt or innocence of murder in the first degree was actually submitted to the jury as a trier of fact; in the present case, respondent successfully avoided such a submission of the first count of the indictment by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him.

The reason for treating a trial aborted on the initiative of the trial judge differently from a trial verdict reversed on appeal, for purposes of double jeopardy, is thus described in Jorn, 400 U. S., at 484 (opinion of Harlan, J.):

“[I]n the [second] situation the defendant has not been deprived of his option to go to the first jury, and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his Valued right to have his trial completed by a particular tribunal.5 ”

We think the same reasoning applies in pari passu where the defendant, instead of obtaining a reversal of his conviction on appeal, obtains the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence. He has not been “deprived55 of his valued right to go to the first jury; only the public has been deprived of its valued right to “one complete opportunity to convict those who have violated its laws.55 Arizona v. Washington, 434 U. S., at 509. No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in a manner favorable to the defendant.¹³

It is obvious from what we have said that we believe we pressed too far in Jenkins the concept of the “defendant's valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U. S. 684, 689 (1949). We now conclude that where the defendant himself seeks to have the trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so is not barred by 18 U. S. C. §3731 (1976 ed.).

We recognize the force of the doctrine of stare decisis, but we are conscious as well of the admonition of Mr. Justice Brandéis:

“[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406-408 (1932) (dissenting opinion).

Here, “the lessons of experience” indicate that Government appeals from midtrial dismissals requested by the defendant would significantly advance the public interest in assuring that each defendant shall be subject to a just judgment on the merits of his case, without “enhancing the possibility that even though innocent he may be found guilty.” Green, 355 U. S., at 188. Accordingly, the contrary holding of United States v. Jenkins is overruled.

The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings.

It is so ordered.

1 A thorough account of the enactment and development of the Act is set out in Mr. Justice Harlan’s opinion for the Court in United States v. Sisson, 399 U. S. 267, 291-296 (1970).

2 The rule established in Wilson and Jenkins was later described in the following terms:

“[Dismissals (as opposed to mistrials) if they occurred at a stage of the proceeding after which jeopardy had attached, but prior to the factfinder’s conclusion as to guilt or innocence, were final so far as the accused defendant was concerned and could not be appealed by the Government because retrial was barred by double jeopardy. This made the issue of double jeopardy turn very largely on temporal considerations — if the Court granted an order of dismissal during the factfinding stage of the proceedings, the defendant could not be reprosecuted, but if the dismissal came later, he could.” Lee v. United, States, 432 U. S. 23, 36 (1977) (RehN-qtjist, J., concurring).

3 The Government contends here that the District Court in Jenkins entered a judgment of acquittal in favor of Jenkins, but our opinion in that case recognized that it could not be said with certainty whether this was the case. See Jenkins, 420 U. S., at 367.

4 Two years later, review was provided for all "infamous” crimes. Act of Mar. 3, 1891, ch. 517, § 5, 26 Stat. 827.

5 The Court thereby rejected the English rule set out in Vaux’s Case, 4 Co. Rep. 44a, 76 Eng. Rep. 992 (K. B. 1590), which refused to recognize a plea of autrefois acquit where the initial indictment had been insufficient to support a conviction. Again, this ruling provided a greater measure of protection for criminal defendants than had been known at the time of the adoption of the Constitution. A contrary ruling would have altered this Court’s task in such cases as Lee v. United States, 432 U. S. 23 (1977), and Illinois v. Somerville, 410 U. S. 458 (1973).

6 In so doing, the Court rejected the contention of Mr, Justice Holmes in dissent that “there is no rule that a man may not be tried twice in the same case.” 195 U. S., at 134. He went on to say:

“If a statute should give the right to take exceptions to the Government, I believe it would be impossible to maintain that the prisoner would be protected by the Constitution from being tried again. He no more would be put in jeopardy a second time when retried because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm.” Id., at 135.

Mr. Justice Holmes’ concept of continuing jeopardy would have greatly simplified the matter of Government appeals, but it has never been accepted by a majority of this Court. See Jenkins, 420 U. S., at 358.

7 In Jenkins we had assumed that a judgment of acquittal could be appealed where no retrial would be needed on remand:

“When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict.” Id,., at 365. Despite the Court’s heavy emphasis on the finality of an acquittal in Martin Linen and Sanabria v. United States, ante, p. 54, neither decision explicitly repudiates this assumption. Sanabria, ante, at 75; Martin Linen, 430 U. S., at 569-570.

8 Downum, in 1963, was the first case in which this Court actually reversed a subsequent conviction because of an improper declaration of a mistrial. This, too, provided greater protection for a defendant than was available at the common law. Although English precedents clearly disapproved of unnecessary mistrials, see generally Arizona v. Washington, 434 U. S., at 506-508, and nn. 21-23, the English rule at the time of the adoption of the Constitution was, as it remains today, that nothing short of a final judgment would bar further prosecution. “The fact that the jury was discharged without giving a verdict cannot be a bar to a subsequent indictment.” 11 Halsbury’s Laws of England, Criminal Law, Evidence, and Procedure ¶242 (4th ed. 1976).

9 In Jenkins, which was a bench trial, we had difficulty, as did the Court of Appeals in that case, in characterizing the jorecise import of the District Court’s order dismissing the indictment. The analysis that governed our disposition turned not on whether the defendant had -been acquitted but on whether the proceeding had terminated “in the defendant’s favor,” 420 U. S., at 365 n. 7, and whether “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand,” id., at 370. We thus had no occasion to determine whether the District Court simply had made "an erroneous interpretation of the controlling law,” id., at 365 n. 7, or whether it had “resolved [controlling] issues of fact in favor of the respondent,” id., at 367; see id., at 362 n. 3.

10 The defense of insanity in a federal criminal prosecution was first recognized by this Court in Davis v. United States, 160 U. S. 469 (1895). Mr. Justice Harlan’s opinion for the Court construed federal law in light of the larger body of common law in other jurisdictions, and concluded:

“One who takes human life cannot be said to be actuated by malice aforethought, or to have deliberately intended to take life, or to have 'a wicked, depraved, and malignant heart,’ or a heart 'regardless of society duty and fatally bent on mischief’ unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such an act.” Id., at 485.

While Congress has never made explicit statutory provision for this affirmative defense or any other, it has recognized the validity of the defense by regulating its use in federal prosecutions. Fed. Rule Crim. Proc. 12.2 (a).

11 While an acquittal on the merits by the trier of fact “can never represent a determination that the criminal defendant is innocent in any absolute sense,” post, at 107 (BreNNAN, J., dissenting), a defendant who has been released by a court for reasons required by the Constitution or laws, but which are unrelated to factual guilt or innocence, has not been determined to be innocent in any sense of that word, absolute or otherwise. In other circumstances, this Court has had no difficulty in distinguishing between those rulings which relate to “the ultimate question of guilt or innocence” and those which serve other purposes. Stone v. Powell, 428 U. S. 465, 490 (1976). We reject the contrary implication of the dissent that this Court or other courts are incapable of distinguishing between the latter and the former.

12 The original jury in that case had found the defendant guilty of second-degree murder, but did not find him guilty of first-degree murder. The Court held that his appeal did not waive his objection to a second prosecution for firsydegree murder, but it was careful to reaffirm the holding of United States v. Ball, 163 U. S. 662 (1896), that “a defendant can be tried a second time for an offense when his prior conviction for that same offense [has] been set aside on appeal.” 355 U. S., at 189.

13 We should point out that it is entirely possible for a trial court to reconcile the public interest in the Government’s right to appeal from an erroneous conclusion of law with the defendant’s interest in avoiding a second prosecution. In United States v. Wilson, 420 U. S. 332 (1975), the court permitted the case to go to the jury, which returned a verdict of guilty, but it subsequently dismissed the indictment for preindictment delay on the basis of evidence adduced at trial. Most recently in United States v. Ceccolini, 435 U. S. 268 (1978), we described similar action with approval: “The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt.” Id., at 271. Accord, United States v. Kopp, 429 U. S. 121 (1976); United States v. Rose, 429 U. S. 5 (1976); United States v. Morrison, 429 U. S. 1 (1976).

We, of course, do not suggest that a midtrial dismissal of a prosecution, in response to a defense motion on grounds unrelated to guilt or innocence, is necessarily improper. Such rulings may be necessary to terminate proceedings marred by fundamental error. But where a defendant prevails on such a motion, he takes the risk that an appellate court will reverse the trial court.