Respondent, indicted for federal drug offenses, moved before
trial and twice during trial for dismissal of two counts of the
indictment on the ground that his defense had been prejudiced by
preindictment delay. At the close of all the evidence, the trial
court granted respondent's motion. The Government sought to appeal
the dismissals under 18 U.S.C. § 3731 (1976 ed.), which allows the
United States to appeal from a district court's dismissal of an
indictment except where the Double Jeopardy Clause of the Fifth
Amendment prohibits further prosecution. The Court of Appeals,
concluding that that Clause barred further prosecution, dismissed
the appeal, relying on
United States v. Jenkins,
420 U. S. 358. In
that case the Court, following the principle underlying the Double
Jeopardy Clause 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, held 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."
Held: Where a defendant himself seeks to have his 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 does not offend the Double Jeopardy Clause, and
hence is not barred by 18 U.S.C. § 3731 (1976 ed.).
United
States v. Jerkins, supra, overruled. Pp.
437 U. S.
87-101.
(a) The successful appeal of a judgment of conviction, except on
the ground of insufficiency of the evidence to support the verdict,
Burks v. United States, ante, 437 U.
S. 1, does not bar 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. Pp.
437 U. S.
87-92.
(b) Where no final determination of guilt or innocence has been
made, a trial judge may declare a mistrial on the motion of the
prosecution or
Page 437 U. S. 83
upon his own initiative only if "there is a manifest necessity
for the act, or the ends of public justice would otherwise be
defeated,"
United States v.
Perez, 9 Wheat. 579,
22 U. S. 580,
but where a defendant successfully seeks to avoid his trial prior
to its conclusion by a motion for a mistrial, the Double Jeopardy
Clause is not offended by a second prosecution. 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 by
the first trier of fact.
United States v. Dinitz,
424 U. S. 600,
424 U. S. 609.
Pp.
437 U. S.
92-94.
(c) At least in some cases, the dismissal of an indictment after
jeopardy has "attached" may be treated on the same basis as the
declaration of a mistrial, even though a successful Government
appeal would require further trial court proceedings leading to the
factual resolution of the issue of guilt or innocence,
see Lee
v. United States, 432 U. S. 23; and
the Court's growing experience with Government appeals calls for a
reexamination of the rationale in
Jenkins in light of
Lee; United States v. Martin Linen Supply Co.,
430 U. S. 564, and
other recent expositions of the Double Jeopardy Clause. Pp.
437 U. S.
94-95.
(d) In a situation such as the instant one, where a defendant
chooses to avoid conviction 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, the defendant, by deliberately choosing
to seek termination of the trial, suffers no injury cognizable
under the Double Jeopardy Clause if the Government is permitted to
appeal from such a trial court ruling favoring the defendant. The
Double Jeopardy Clause, which guards against Government oppression,
does not relieve a defendant of the consequences of his voluntary
choice. Pp.
437 U. S.
95-101. 544 F.2d 903, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL,
and STEVENS, JJ., joined,
post, p.
437 U. S.
101.
Page 437 U. S. 84
MR. JUSTICE REHNQUIST 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 preindictment 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
Page 437 U. S. 85
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. [
Footnote 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,
401 U. S. 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 issues of statutory
construction to issues as to the scope and 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,
420 U. S. 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
Page 437 U. S. 86
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
420 U. S. 342.
We accordingly held in
Jenkins, supra at
420 U. S. 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. [
Footnote 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.
[
Footnote 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
Page 437 U. S. 87
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
420 U. S.
339-340;
Green v. United States, 355 U.
S. 184,
355 U. S.
187-188 (1957);
id. at
355 U. S. 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 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, as
well as enhancing the possibility that, even though innocent, he
may be found guilty."
Green, supra, at
355 U. S.
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
Page 437 U. S. 88
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. [
Footnote 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
trial, [
Footnote 5] but that it
posed no such
Page 437 U. S. 89
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
163 U. S.
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
Page 437 U. S. 90
in an appellate court, is to put him a second time in jeopardy
for the same offense. . . ."
Id. at
195 U. S. 133.
[
Footnote 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
369 U. S. 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
163 U. S. 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
430 U. S.
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
Page 437 U. S. 91
the evidence to support the verdict,
Burks v. United States,
ante 437 U. S. 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. [
Footnote 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."
Green, 355 U.S. at
335 U. S. 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. 66 (No. 15,510)
Page 437 U. S. 92
(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.
III
Although the primary purpose of the Double Jeopardy Clause was
to protect the integrity of a final judgment,
see Crist v.
Bretz, ante at
437 U. S. 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,
432 U. S. 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,
372 U. S. 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
Page 437 U. S. 93
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
22 U. S. 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
Downum, supra,
[
Footnote 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
434 U. S.
514-516.
Where, on the other hand, a defendant successfully seeks 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 reprosecution, even if the defendant's
motion is necessitated by a prosecutorial or judicial error."
United States v. Jorn, 400 U.
S. 470,
400 U. S. 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,
Page 437 U. S. 94
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,
424 U. S. 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
424 U. S.
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
420 U. S. 370,
held that, regardless of the character of the mid-trial
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 mid-trial
dismissal of an indictment. The Court found the circumstances
presented by that case "functionally indistinguishable from a
declaration of mistrial." 432 U.S. at
432 U. S. 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.
Page 437 U. S. 95
In the present case, the District Court's dismissal of the first
count of the indictment was based upon a claim of preindictment
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
reexamine 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
437 U. S.
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
420 U. S. 370,
quoting
Green, 355 U.S. at
355 U. S. 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
Page 437 U. S. 96
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.
437 U. S. 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 insisted that "the trial judge's
characterization of his own action cannot control the
classification of the action."
Jorn, 400 U.S. at
400 U. S. 478
n. 7 (opinion of Harlan, J.), citing
United States v.
Sisson, 399 U. S. 267,
399 U. S. 290
(1970).
See also Martin Linen, 430 U.S. at
430 U. S. 571;
Wilson, 420 U.S. at
420 U. S. 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
420 U. S. 348,
or because
Page 437 U. S. 97
it "is granted on the ground . . . that the defendant simply
cannot be convicted of the offense charged,"
Lee, 432 U.S.
at
432 U. S. 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
430 U. S. 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
430 U. S. 572.
[
Footnote 9]
Our opinion in
Burks, ante at
437 U. S. 16,
holds that there has been a "failure of proof,"
ante at
437 U. S. 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 fact established to the
satisfaction of the trier of fact provide a legally
Page 437 U. S. 98
adequate justification for otherwise criminal acts. [
Footnote 10] Such a factual finding
does "necessarily establish the criminal defendant's lack
of criminal culpability,"
post at
437 U. S. 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. [
Footnote 11]
We think that, in a case such as this, the defendant, by
deliberately choosing to seek termination of the proceedings
Page 437 U. S. 99
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. [
Footnote 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
400 U. S. 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
Page 437 U. S. 100
been deprived of his 'valued right to have his trial completed
by a particular tribunal.'"
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 "deprived" 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."
Arizona v. Washington, 434 U.S. at
434 U. S. 509.
No interest protected by the Double Jeopardy Clause is invaded when
the Government is allowed to appeal and seek reversal of such a
mid-trial termination of the proceedings in a manner favorable to
the defendant. [
Footnote
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."
Page 437 U. S. 101
Wade v. Hunter, 336 U. S. 684,
336 U. S. 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 Brandeis:
"[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,
285 U. S. 406
408 (1932) (dissenting opinion). Here, "the lessons of experience"
indicate that Government appeals from mid-trial 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
355 U. S. 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.
[
Footnote 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,
399 U. S.
291-296 (1970).
[
Footnote 2]
The rule established in
Wilson and
Jenkins was
later described in the following terms:
"[D]ismissals (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,
432 U. S. 36
(1977) (REHNQUIST, J., concurring).
[
Footnote 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
420 U. S.
367.
[
Footnote 4]
Two years later, review was provided for all "infamous" crimes.
Act of Mar. 3, 1891, ch. 517, § 5, 26 Stat. 827.
[
Footnote 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).
[
Footnote 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
195 U. S. 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
195 U. S. 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
420 U. S. 358.
[
Footnote 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
420 U. S. 365.
Despite the Court's heavy emphasis on the finality of an acquittal
in
Martin Linen and
Sanabria v. United States,
ante p.
437 U. S. 54,
neither decision explicitly repudiates this assumption.
Sanabria, ante at
437 U. S. 75;
Martin Linen, 430 U.S. at
430 U. S.
569-570.
[
Footnote 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
434 U. S.
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).
[
Footnote 9]
In
Jenkins, which was a bench trial, we had difficulty,
as did the Court of Appeals in that case, in characterizing the
precise 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
420 U. S. 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
420 U. S. 370.
We thus had no occasion to determine whether the District Court
simply had made "an erroneous interpretation of the controlling
law,"
id. at
420 U. S. 365,
n. 7, or whether it had "resolved [controlling] issues of fact in
favor of the respondent,"
id. at
420 U. S. 367;
see id. at
420 U. S. 362
n. 3.
[
Footnote 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
160 U. S. 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).
[
Footnote 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
437 U. S. 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,
428 U. S. 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.
[
Footnote 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 first-degree 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
355 U. S.
189.
[
Footnote 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
435 U. S. 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 mid-trial 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.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE, MR. JUSTICE
MARSHALL, and MR. JUSTICE STEVENS join, dissenting.
On the basis of his evaluation of the trial evidence, the
District Judge concluded that unjustifiable preindictment delay
Page 437 U. S. 102
had so prejudiced respondent's defense as to preclude --
consistently with the Due Process Clause -- his conviction of the
offense alleged in count one of the indictment. He therefore
dismissed this count with prejudice. Under the principles of double
jeopardy law that controlled until today, further prosecution of
respondent under count one would unquestionably be prohibited, and
appeal by the United States from the judgment of dismissal thus
would not lie.
See 18 U.S.C. § 3731 (1976 ed.). The
dismissal would, under prior law, have been treated as an
"acquittal" --
i.e., "a legal determination on the basis
of facts adduced at the trial relating to the general issue of the
case."
United States v. Martin Linen Supply Co.,
430 U. S. 564,
430 U. S. 575
(1977) (citations omitted). Indeed, further proceedings would have
been barred even if the dismissal could not have been so
characterized.
United States v. Jenkins, 420 U.
S. 358 (1975), established that, even if a mid-trial
termination does not amount to an "acquittal," an appeal by the
United States from the dismissal would not lie if a reversal would,
as is of course true in the present case, require "further
proceedings of some sort, devoted to the resolution of factual
issues going to the elements of the offense charged."
Id.
at
420 U. S. 370.
This principle was reaffirmed only last Term in
Lee v. United
States, 432 U. S. 23,
432 U. S. 30
(1977):
"Where a mid-trial dismissal is granted on the ground, correct
or not, that the defendant simply cannot be convicted of the
offense charged, . . . further prosecution is barred by the Double
Jeopardy Clause. [
Footnote
2/1]"
But the Court today overrules the principle recognized in
Jenkins and
Lee. While reaffirming that the
Government may not appeal from judgments of "acquittal" when
reversals would require new trials, the Court holds that appeals by
the United States will lie from all other final judgments
favorable
Page 437 U. S. 103
to the accused. The Court implements this new rule by fashioning
a more restrictive definition of "acquittal" than heretofore
followed --
i.e., "a resolution, correct or not, of some
or all of the factual elements of the offense" -- and holds,
without explanation, that, under that restrictive definition,
respondent was not "acquitted" when the District Judge concluded
that the facts adduced at trial established that unjustifiable and
prejudicial preindictment delay gave respondent a complete defense
to the charges contained in count one.
I dissent. I would not overrule the rule announced in
Jenkins and reaffirmed in
Lee. This principle is
vital to the implementation of the values protected by the Double
Jeopardy Clause; indeed, it follows necessarily from the very rule
the Court today reaffirms. The Court's attempt to draw a
distinction between "true acquittals" and other final judgments
favorable to the accused, quite simply, is unsupportable in either
logic or policy. Equally fundamental, the decision today
indefensibly adopts an overly restrictive definition of
"acquittal." Its definition, moreover, in sharp contrast to the
rule of
Jenkins, is incapable of principled application.
That is vividly evident in the Court's own distinction between a
dismissal based on a finding of pre-accusation delay, violative of
due process, and a dismissal based upon evidence adduced at trial
in support of a defense of insanity or of entrapment.
Ante
at
437 U. S. 97-98.
Why should the dismissal in the latter cases raise a double
jeopardy bar, but the dismissal based on pre-accusation delay not
also raise that bar to a retrial? The Court ventures no persuasive
explanation. Because the thousands of state and federal judges who
must apply today's decision to similar "affirmative defenses" are
left without meaningful guidance, only confusion can result from
today's decision.
I
The Court reaffirms the "most fundamental rule in the history of
double jeopardy jurisprudence": that judgments of
Page 437 U. S. 104
acquittal, no matter how erroneous, bar any retrial, and thus
that, under the proviso in 18 U.S.C. § 3731 (1976 ed.), [
Footnote 2/2] appeals by the United States
will not lie when reversal would require a retrial. [
Footnote 2/3] The major premise for the
Court's conclusion that the Government may appeal from the final
judgment entered for respondent is that there is a difference of
constitutional magnitude between "acquittals" and mid-trial
dismissals, entered on motion of the accused, on grounds "unrelated
to factual innocence." This premise is fatally flawed. It quite
simply misconceives the whole basis for the rule that "acquittals"
bar retrials. The reason for this rule is not, as the Court
suggests, primarily to safeguard determinations 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. Moreover, in terms
of the practical operation of the adversary process, there is
actually no difference between a so-called "true acquittal" and the
termination in this case favorably to respondent.
A
While the Double Jeopardy Clause often has the effect of
protecting the accused's interest in the finality of particular
favorable determinations, this is not its objective. For the Clause
often permits Government appeals from final judgments favorable to
the accused.
See United States v. Wlson, 420 U.
S. 332 (1975) (whether or not final judgment was an
acquittal, Government may appeal if reversal would not
necessitate
Page 437 U. S. 105
a retrial). The purpose of the Clause, which the Court today
fails sufficiently to appreciate, is to protect the accused against
the agony and risks attendant upon undergoing more than one
criminal trial for any single offense.
See ibid. A retrial
increases the financial and emotional burden that any criminal
trial represents for the accused, prolongs the period of the
unresolved accusation of wrongdoing, and enhances the risk that an
innocent defendant may be convicted. [
Footnote 2/4]
See Arizona v. Washington,
434 U. S. 497,
434 U. S.
503-504 (1978);
Green v. United States,
355 U. S. 184,
355 U. S.
187-188 (1957). Society's "willingness to limit the
Government to a single criminal proceeding to vindicate its very
vital interest in enforcement of criminal laws" bespeaks society's
recognition of the gross unfairness of requiring the accused to
undergo the strain and agony of more than one trial for any single
offense.
United States v. Jorn, 400 U.
S. 470,
400 U. S. 479
(1971) (opinion of Harlan, J.). Accordingly, the policies of the
Double Jeopardy Clause mandate that the Government be afforded but
one complete opportunity to convict an accused, and that, when the
first proceeding terminates in a final judgment favorable to the
defendant, [
Footnote 2/5] any
retrial be barred. The rule as to acquittals can only be understood
as simply an application of this larger principle.
Judgments of acquittal normally result from jury or bench
Page 437 U. S. 106
verdicts of not guilty. In such cases, the acquittal represents
the factfinder's conclusion that, under the controlling legal
principles, the evidence does not establish that the defendant can
be convicted of the offense charged in the indictment. But the
judgment does not necessarily establish the criminal defendant's
lack of criminal culpability; the acquittal may result from
erroneous evidentiary rulings or erroneous interpretations of
governing legal principles induced by the defense. Yet the Double
Jeopardy Clause bars a second trial.
In repeatedly holding that the Government may not appeal from an
acquittal if a reversal would necessitate a retrial, the Court has,
of course, recognized that this rule impairs to some degree the
Government's interest in enforcing its criminal laws. Yet, while we
have acknowledged that permitting review of acquittals would avoid
release of guilty defendants who benefited from "error, irrational
behavior, or prejudice on the part of the trial judge,"
United
States v. Martin Linen Supply Co., 430 U.S. at
430 U. S. 574;
see United States v. Wilson, supra at
420 U. S. 352,
we nevertheless have consistently held that the Double Jeopardy
Clause bars any appellate review in such circumstances. The reason
is not that the first trial established the defendant's factual
innocence, but, rather, that the second trial would present all the
untoward consequences the Clause was designed to prevent. The
Government would be allowed to seek to persuade a second trier of
fact of the defendant's guilt, to strengthen any weaknesses in its
first presentation, and to subject the defendant to the expense and
anxiety of a second trial.
See ibid.
This basic principle of double jeopardy law has heretofore
applied not only to acquittals based on the verdict of the
factfinder, but also to acquittals entered by the trial judge,
following the presentation of evidence but before verdict, pursuant
to Fed.Rule Crim.Proc. 29.
See Sanabria v. United States,
ante p.
437 U. S. 54;
United States v. Martin Linen Supply Co.,
Page 437 U. S. 107
supra; Fong Foo v. United States, 369 U.
S. 141 (162). For, however egregious the error of the
acquittal, the termination favorable to the accused has been
regarded as no different from a factfinder's acquittal that
resulted from errors of the trial judge.
See also Burks v.
United States, ante 437 U. S. 1. These
cases teach that the Government's means of protecting its vital
interest in convicting the guilty is its participation as an
adversary at the criminal trial where it has every opportunity to
dissuade the trial court from committing erroneous rulings
favorable to the accused.
Jenkins was simply a necessary and logical extension of
the rule that an acquittal bars any further trial proceedings.
Jenkins recognized that an acquittal can never represent a
determination that the criminal defendant is innocent in any
absolute sense; the bar to a retrial following acquittal does not
-- and indeed could not -- rest on any assumption that the finder
of fact has applied the correct legal principles to all the
admissible evidence and determined that the defendant was factually
innocent of the offense charged. The reason further prosecution is
barred following an acquittal, rather, is that the Government has
been afforded one complete opportunity to prove a case of the
criminal defendant's culpability and, when it has failed for any
reason to persuade the court not to enter a final judgment
favorable to the accused, the constitutional policies underlying
the ban against multiple trials become compelling. Thus,
Jenkins and
Lee recognized that it mattered not
whether the final judgment constituted a formal "acquittal." What
is critical is whether the accused obtained, after jeopardy
attached, a favorable termination of the charges against him. If he
did, no matter how erroneous the ruling, the policies embodied in
the Double Jeopardy Clause require the conclusion that "further
proceedings . . . devoted to the resolution of factual issues going
to the elements of the offense charged" are barred.
Jenkins, 420 U.S. at
420 U. S. 370;
see Lee, 432 U.S. at
432 U. S.
30.
Page 437 U. S. 108
B
The whole premise for today's retreat from
Jenkins and
Lee, of course, is the Court's new theory that a criminal
defendant who seeks to avoid conviction on a "ground unrelated to
factual innocence" somehow stands on a different constitutional
footing from a defendant whose participation in his criminal trial
creates a situation in which a judgment of acquittal has to be
entered. This premise is simply untenable. The rule prohibiting
retrials following acquittals does not and could not rest on a
conclusion that the accused was factually innocent in any
meaningful sense. If that were the basis for the rule, the
decisions that have held that even egregiously erroneous acquittals
preclude retrials,
see, e.g., Fong Foo v. United States,
supra, (acquittal entered after three of many prosecution
witnesses had testified);
Sanabria v. United States, ante
p.
437 U. S. 54, were
erroneous.
It is manifest that the reasons that bar a retrial following an
acquittal are equally applicable to a final judgment entered on a
ground "unrelated to factual innocence." The heavy personal strain
of the second trial is the same in either case. So too is the risk
that, though innocent, the defendant may be found guilty at a
second trial. If the appeal is allowed in either situation, the
Government will, following any reversal, not only obtain the
benefit of the favorable appellate ruling, but also be permitted to
shore up any other weak points of its case and obtain all the other
advantages at the second trial that the Double Jeopardy Clause was
designed to forbid.
Moreover, the Government.'s interest in retrying a defendant
simply cannot vary depending on the ground of the final termination
in the accused's favor. I reject as plainly erroneous the Court's
suggestion that final judgments not based on innocence deprive the
public of "its valued right to
one complete opportunity to
convict those who have violated its laws,'" ante at
437 U. S. 100,
quoting Arizona v. Washington, 434
Page 437 U. S. 109
U.S. at
434 U. S. 509,
[
Footnote 2/6] and therefore differ
from "true acquittals." The Government has the same "complete
opportunity" in either situation by virtue of its participation as
an adversary at the criminal trial. [
Footnote 2/7]
Equally significant, the distinction between the two is, at
best, purely formal. Many acquittals are the consequence of rulings
of law made on the accused's motion that are not related to the
question of his factual guilt or innocence:
e.g., a ruling
on the law respecting the scope of the offense or excluding
reliable evidence.
Sanabria v. United States, ante p.
437 U. S. 54,
illustrates the point.
Page 437 U. S. 110
In
Sanabria, the District Court, acting on the
defendant's motions, made a series of erroneous legal rulings which
began with an erroneous construction of the indictment and
culminated in the exclusion of most of the evidence of defendant's
guilt. The trial court then granted defendant's motion for a
judgment of acquittal on the ground that the remaining evidence was
insufficient.
Sanabria held that the mid-trial termination
of the prosecution erected an absolute bar to any further
proceedings against the defendant, and we reached that result even
though the rulings which led to the acquittal were purely legal
determinations, unrelated to any question of defendant's factual
guilt, and had been precipitated entirely by the defendant's
"voluntary choice" to seek a narrow construction of his
indictment.
Here the legal ruling that the Court characterizes as unrelated
to the defendant's factual guilt itself terminated the prosecution
with prejudice. In
Sanabria, after the District Court
rendered the two erroneous rulings that excluded most of the
relevant evidence of defendant's guilt, it remained for the trial
court to take the
pro forma step of granting the
defendant's motion for a judgment of acquittal. Surely, this
difference between the cases should not possess constitutional
significance. By holding that it does, the Court suggests that the
present case would have been decided differently if the trial court
had remedied the due process violation by excluding all the
Government's evidence on count one and then entering an acquittal
pursuant to Rule 29.
Sanabria simply confirms that the
distinction the Court today draws is wholly arbitrary, bearing no
conceivable relationship to the policies protected by the Double
Jeopardy Clause.
II
The Court's definition of "acquittal" compounds the damage that
repudiation of
Jenkins and
Lee has done to the
fabric of double jeopardy law. Not only is this definition
unduly
Page 437 U. S. 111
restrictive, it is literally incapable of principled
application. The Court's application of its definition to the facts
of this case proves the point.
The doctrine of preindictment delay, like a host of other
principles and policies of the law --
e.g., entrapment,
insanity, right to speedy trial, statute of limitations -- operates
to preclude the imposition of criminal liability on defendants,
notwithstanding a showing that they committed criminal acts. Like
these other doctrines, the question whether preindictment delay
violates due process of law cannot ordinarily be considered apart
from the factual development at trial, since normally only the
"
[e]vents of the trial [can demonstrate] actual prejudice.'"
United States v. Lovasco, 431 U.
S. 783, 431 U. S. 789
(1977), quoting United States v. Marion, 404 U.
S. 307, 404 U. S. 326
(1971); see United States v. MacDonald, 435 U.
S. 850, 435 U. S. 858,
435 U. S.
858-859 (1978).
Here, therefore, the District Court, quite properly, deferred
consideration of the respondent's pretrial motion to dismiss for
pre-accusation delay until trial. At the close of the evidence,
respondent renewed his motion. The District Court recognized that
there was sufficient evidence of guilt to permit submission of
count one to the jury, but granted the motion as to this count
because, evaluating the facts adduced at trial, the court found
that the delay between the offense alleged and respondent's
indictment had been unjustifiable and had so prejudiced
respondent's ability to present his defense as to constitute a
denial of due process of law.
A critical feature of today's holding appears to be the Court's
definition of acquittal as "
a resolution [in the defendant's
favor], correct or not, of some or all of the factual elements of
the offense charged,'" ante at 437 U. S. 97,
quoting United States v. Martin Linen Supply Co., 430 U.S.
at 430 U. S. 571.
But this definition, which is narrower than the traditional one,
enjoys no significant support in our prior decisions. The language
quoted from Martin Linen Supply Co. was tied to the
particular
Page 437 U. S. 112
issue in that case, and was never intended to serve as an
all-encompassing definition of acquittal for all purposes. Rather,
Martin Linen Supply referred generally to "acquittal" as
"a legal determination on the basis of facts adduced at the trial
relating to the general issue of the case,"
id. at
430 U. S. 575
(citations omitted), and this is the accepted definition.
See
Serfass v. United States, 420 U. S. 377,
420 U. S. 393
(1975), quoting
United States v. Sisson, 399 U.
S. 267,
399 U. S. 290
n. 10 (1970). This definition, moreover, clearly encompasses
rulings pertaining to all "affirmative defenses" that depend on the
factual development at trial.
The traditional definition of "acquittal" obviously is
responsive to the values protected by the Double Jeopardy Clause.
While it perhaps might not be objectionable to permit retrial of a
defendant whose first trial was terminated on the basis of a
mid-trial ruling on a motion that could -- because it did not
depend upon the facts adduced at trial -- have been raised before
jeopardy attached,
see Serfass v. United States, supra at
420 U. S. 394,
[
Footnote 2/8] it would be
intolerable to permit the retrial of a defendant whose first
prosecution ended on the basis of a ruling -- like the one in the
present case -- which could only be made after the factual
development at trial. Notably, the Court neither explains why it
chooses to reject the more traditional definition of "acquittal"
nor attempts to justify its more restrictive definition in terms of
the constitutional policy against multiple trials.
But I will not dwell further on this point. As the Court opinion
itself demonstrates, what is perhaps as important as the actual
definition is how it is applied. The pertinent question, thus, is
one the Court never addresses: why, for purposes
Page 437 U. S. 113
of its new definition of "acquittal," is not the fact
vel
non of preindictment delay one of the "factual elements of the
offense charged"? The Court plainly cannot answer that
preindictment delay is not referred to in the statutory definition
of the offense charged in count one,
cf. Patterson v. New
York, 432 U. S. 197
(1977), for it states that dismissals based on the defenses of
insanity [
Footnote 2/9] and
entrapment -- neither of which is bound up with the statutory
definition of federal crimes -- will constitute "acquittals."
Ante at
437 U. S.
97-98.
How can decisions based on the trial evidence that a defendant
is "not guilty by reason of insanity" or "not guilty by reason of
entrapment" erect a double jeopardy bar, and a decision -- equally
based on evaluation of the trial evidence -- that the defendant is
"not guilty by reason of pre-accusation delay" not also prohibit
further prosecution? None of these defenses is bound up in the
definition of a crime, and the availability of each depends on the
factual development at trial. More fundamentally, to permit a
retrial following an appellate court's reversal of a judgment
entered on any of these grounds presents all the evils the Double
Jeopardy Clause was designed to prevent. The Court offers no
satisfactory explanation for the difference in treatment. The
suggestion that determinations concerning insanity and entrapment
are "factual," whereas dismissals of indictments for preindictment
delay represent "legal judgments,"
see ante
Page 437 U. S. 114
at
437 U. S. 98, is
simply untenable. Consideration of all three defenses requires the
application of legal standards to the evidence adduced at trial,
and the most likely ground for reversal and reprosecution following
the entry of a final judgment favorable to the accused on such
grounds would be an appellate court's conclusion that the trial
court applied an erroneous legal test. The question the Court fails
to address, therefore, is why an egregiously erroneous dismissal on
entrapment grounds --
e.g., a ruling in a federal trial
that a defendant has been entrapped as a matter of law because it
had been shown that the Government had supplied the contraband the
defendant had been charged with selling,
cf. Hampton v. United
States, 425 U. S. 484
(1976) -- should erect a double jeopardy bar but not a possibly
erroneous dismissal on the ground of pre-accusation delay. The
Court's observation that factual defenses of insanity and
entrapment provide "legal justifications for otherwise criminal
acts" -- and is unlike the doctrine of preindictment delay, which
is intended to protect the integrity of the trial process --
reflects common legal parlance, but in no wise explains why the two
classes of dismissals should have different double jeopardy
consequences. Whether or not the Court's
ipse dixit
concerning the consequences of a ruling of unlawful pre-accusation
delay is defensible, the enormous practical problems that today's
decision portends are very clear. A particularly appealing virtue
of the
Jenkins and
Lee principle -- in addition,
of course, to its protection of constitutional values -- was its
simplicity. Any mid-trial order contemplating an end to all
prosecution of the accused would automatically erect a double
jeopardy bar to a retrial. Under today's decision, the thousands of
state and federal courts will be required to decide, with only
minimal guidance from this Court, the question of the double
jeopardy consequences of all favorable terminations of criminal
proceedings on the basis of affirmative defenses. The only guidance
the Court offers is its suggestion that defenses which
Page 437 U. S. 115
provide legal justifications for otherwise criminal acts will
erect double jeopardy bars, whereas those defenses that arise from
unlawful or unconstitutional Government acts will not.
Consideration of the defense of entrapment illustrates how
difficult the Court's decision will be to apply. To the extent the
defense applies when there has been a showing the defendant was not
"predisposed" to commit a criminal act, it perhaps does provide a
"legal justification." But the defense of entrapment, in many
jurisdictions,
see Park, The Entrapment Controversy, 60
Minn.L.Rev. 163, 171-176 (1976), is a device to deter police
officials from engaging in reprehensible law enforcement
techniques. Is the entrapment defense to erect a double jeopardy
bar in such jurisdictions? Are the double jeopardy consequences to
depend upon the appellate court's characterization of the operation
of the defense in the particular case before it? And what of other
traditional factual defenses, which are routinely submitted to the
jury and which could be the basis for Rule 29 motions:
e.g., the statute of limitations? [
Footnote 2/10] Ironically, it seems likely that, when
all is said and done, there will be few instances indeed in which
defenses can be deemed unrelated to factual innocence. If so,
today's decision may be limited to disfavored doctrines like
pre-accusation delay.
See generally United States v.
Lovasco, 431 U. S. 783
(1977).
It is regrettable that the Court should introduce such confusion
in an area of the law that, until today, had been crystal clear.
Its introduction might be tolerable if necessary to advance some
important policy or to serve values protected by
Page 437 U. S. 116
the Double Jeopardy Clause, but that manifestly is not the case.
Rather, today's decision fashions an entirely arbitrary distinction
that creates precisely the evils that the Double Jeopardy Clause
was designed to prevent. I would affirm the judgment of the Court
of Appeals.
[
Footnote 2/1]
See also Finch v. United States, 433 U.
S. 676 (1977) (applying rule of
Jenkins to
dismissal entered on basis of stipulated facts);
United States
v. Martin Linen Supply Co., 430 U. S. 564
(1977).
[
Footnote 2/2]
Section 3731 provides that the United States may obtain
appellate review of a "dismissal," "except that no appeal shall lie
where the double jeopardy clause of the United States Constitution
prohibits further prosecution."
[
Footnote 2/3]
The Court cites with approval
Sanabria v. United States,
ante 437 U. S. 54;
United States v. Martin Linen Supply Co., supra; Fong Foo v.
United States, 369 U. S. 141
(1962);
Kepner v. United States, 195 U.
S. 100 (1904); and
United States v. Ball,
163 U. S. 662
(1896).
[
Footnote 2/4]
There are a number of reasons a retrial enhances the risk that,
"even though innocent, [the criminal defendant] may be found
guilty."
Green v. United States, 355 U.
S. 184,
355 U. S. 188
(1957). A retrial affords the Government the opportunity to
reexamine the weaknesses of its first presentation in order to
strengthen the second. And, as would any litigant, the Government
has been known to take advantage of this opportunity. It is not
uncommon to find that prosecution witnesses change their testimony,
not always subtly, at second trials.
See Arizona v.
Washington, 434 U. S. 497,
434 U. S. 504
n. 14 (1978), quoting
Carsey v. United States, 129
U.S.App.D.C. 205, 208-209, 392 F.2d 810, 813-814 (1967).
[
Footnote 2/5]
By "final judgment favorable to the accused," I am, of course,
referring to an order terminating all prosecution of the defendant
on the ground he "simply cannot be convicted of the offense
charged."
See Lee v. United States, 432 U. S.
23,
432 U. S. 30
(1977).
[
Footnote 2/6]
Similarly unpersuasive is the Court's suggestion that its
holding is supported by the well recognized rules that a criminal
defendant may twice be tried for the same offense if he either
successfully moved for a mistrial at the first trial,
see Lee,
supra; United States v. Dinitz, 424 U.
S. 600 (1976), or succeeded in having a conviction set
aside on a ground other than the insufficiency of the evidence.
See United States v. Ball, 163 U.
S. 662 (1896). What distinguishes these situations, of
course, is that neither involved a final judgment entered for the
accused, and that, in both, the Government could not be said to
have had a complete opportunity to convict the accused.
[
Footnote 2/7]
The Court's suggestion that intervening decisions have somehow
undermined
Jenkins simply will not wash. Although it is
quite true that the author of the Court opinion has stated that he
understood
Jenkins to embrace a rule that any mid-trial
termination that is labeled a "dismissal" erects a double jeopardy
bar,
see ante at
437 U. S. 86 n.
2, quoting
Lee, 432 U.S. at
432 U. S. 36
(REHNQUIST, J., concurring), no Court opinion has adopted the
position that the label attached to a trial court's ruling could be
determinative. Indeed, since
Serfass v. United States,
420 U. S. 377,
420 U. S. 392
(1975), which was decided the week after
Jenkins,
explicitly provides that labels are not to have such talismanic
significance, the unanimous Court in
Jenkins could
scarcely have contemplated that. it had announced such a mechanical
formula.
Thus, the Court's suggestion,
see ante at
437 U. S. 94,
that
Lee, which held that a termination that was labeled a
"dismissal" did not erect a double jeopardy bar, could have
undermined
Jenkins is unpersuasive on its face. In
Lee, we treated the dismissal as the equivalent of a
mistrial because both the trial judge and the parties had so
regarded it.
See 432 U.S. at
432 U. S.
29.
[
Footnote 2/8]
In
Serfass, we reserved decision on the question
whether a defendant who was afforded an opportunity to obtain a
determination of a legal defense prior to trial, but who
nevertheless knowingly allowed himself to be placed in jeopardy
before raising the defense, could claim the protections of the
Double Jeopardy Clause. 420 U.S. at
420 U. S.
394.
[
Footnote 2/9]
A contrary position would not only be inconsistent with
Burks v. United States, ante 437 U.
S. 1, but would also have untoward consequences for
criminal defendants. The premise of such a ruling would necessarily
be that a criminal defendant has no legitimate interest in
protecting the finality of a verdict of not guilty by reason of
insanity. It would then follow that there could be appellate review
not only of all directed verdicts of not guilty by reason of
insanity, but also of all jury verdicts that had been preceded by a
prior finding of guilt of the statutory offense. The implications
of such a holding would be particularly significant in
jurisdictions providing for bifurcated determinations of guilt and
sanity.
[
Footnote 2/10]
In any case in which the date upon which the defendant committed
the crime is disputed and may have been outside the statute of
limitations provided by law, a trial judge could, and probably
would, submit this question to the jury along with the general
issue. Similarly, in any case in which the evidence adduced at
trial revealed that the defendant had committed the criminal act
outside the limitation period, the defendant would move for a
"directed verdict."