Burks v US Brief for the Petitioner
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October 31, 1977

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Brief Collection, LDF Court Filings. Burks v US Brief for the Petitioner, 1977. 2a5e0713-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/51d54615-fb41-43e4-aba4-eca931817864/burks-v-us-brief-for-the-petitioner. Accessed July 01, 2025.
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The Supreme Court of the United States David Wayne Burks versus United States of America Petition and Briefs Law Reprints Criminal Law Series Volume 9, no. 16 1977/1978 Term Supreme Court of tfjr ®mtrb jg>tatrs OCTOBER TERM. 1977 IN THE No. 76-6528 DAVID WAYNE BURKS, Petitioner, v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE PETITIONER BART C. DURHAM, III 1104 Parkway Towers Nashville, Tennessee 37219 Attorney for Petitioner TABLE OF CONTENTS Page OPINIONS BELOW ........................................................................... 1 JURISDICTION ...................................................................................1 CONSTITUTIONAL, STATUTORY AND RULES PROVISIONS INVOLVED ............................................................2 QUESTIONS PRESENTED ............................................................2 STATEM ENT...................................................................................... 3 SUMMARY OF ARGUMENT ........................................................ 3 ARGUMENT INTRODUCTION The Bryan Rule and Its Historical Antecedents ......................... 4 I. A RETRIAL AFTER A REVERSAL FOR INSUFFICIENT EVIDENCE VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION ........................................................8 A. Reversal for Insufficient Evidence Should Result in Acquittal Because Such Reversal Differs Significantly from Reversal for Pro cedural Error................................................................. 10 B. The Petitioner Did Not Waive His Right to an Acquittal by Taking an Appeal...................................... 13 C. The Petitioner Did Not Waive His Right to an Acquittal by Asking for a New Trial............................ 14 II. ASSUMING THERE IS NO VIOLATION OF THE DOUBLE JEOPARDY CLAUSE, THE PETITIONER SHOULD BE ACQUITTED UNDER 28 U.S.C. 2106 BECAUSE JUST AND APPROPRIATE ........................................................ 16 CONCLUSION .................................................................................19 TABLE OF AUTHORITIES Cases: Abney v. United States, No. 75-6521, decided June 9, 1977 ................................................................................................. 4 Ball v. United States, 163 U.S. 662 .................................. 5,6,8,9,13 (l) Bryan v. United States, 338 U.S. 552....................................passim Fong Foo v. United States, 369 U.S. 141........................................8 Forman v. United States, 361 U.S. 416........................................7,9 Green v. Massey, 546 F.2d 51............................................................7 Green v. United States, 355 U.S. 1 8 4 ..........................4,5,9,14,15,16 Johnson v. Zerbst, 304 U.S. 4 58 ...................................................... 14 Kepner v. United States, 195 U.S. 1 0 0 ..........................................14 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 .......................................................................................... 6 McKane v. Durston, 153 U.S. 684 .................................................... 4 Murphy v. Massachusetts, 177 U.S. 155 ........................................13 People v. Brown, 241 N.E.2d 653 .......................................... 7,15,17 Reetz v. Michigan, 188 U.S. 505........................................................ 4 Sapir v. United States, 348 U.S. 373 .................................. 6,7,14,15 Sumpter v. DeGroote, C.A. 7, No. 76-1849, decided April 1, 1977............................................................................... 7,8 Trono v. United States, 199 U.S. 521 ..............................................6 United States v. Bass, 490 F.2d 846............................................... 18 United States v. Dotson, 440 F.2d 1224 ......................................... 7 United States v. Fusco, 427 F.2d 3 6 1 ............................................. 7 United States v. Howard, 432 F.2d 1188 ....................................... 7 United States v. Robinson, 545 F.2d 301 ....................................... 7 United States v. Rosenbarger, 536 F.2d 715.............................. 7,18 United States v. Smith, 404 F.2d 720.................................................3 United States v. Smith, 437 F.2d 5 3 8 .............................................18 United States v. Tateo, 377 U.S. 463.................................... 7,16,17 United States v. Wiley, 517 F.2d 1212........................................ 7,17 United States v. Williams, 348 F.2d 451, certiorari denied, 384 U.S. 1022................................................................... 7 United States v. Wilson, 420 U.S. 332.......................................... 6,8 Yates v. United States, 354 U.S. 298 ............................................... 7 (ii) (id) Constitution, statutes, and rules: United States Constitution, Fifth Amendment........................2,3,17,18 28 U.S.C. 1254(1)...................................................................... 2 28 U.S.C. 2106............................................................... passim Rule 29(a), Federal Rules of Criminal Pro cedure ................................................................................. 2,3,6,8,14 Miscellaneous: Cahan, Granting the State a New Trial After an Appellate Reversal for Insufficient Evidence, 157 111. B.J. 448 (1969)......................................................................... 7,18 Fisher, Double Jeopardy: Six Common Boners Summarized, 15 U.C.L.A. Law Review 81-84 (1967)................................................................................................7 Mayers and Yarbrough, Bis Vexaris: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1 (1960)..................................................................................... 7,13 8 Moore’s Federal Practice 29.09[2] at 29-57 (1976)................................................................................................7 Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, U. Chi. L. Rev. 365 (1964)............................................................................ 7,9.10 Thompson, Reversals for Insufficient Evidence: The Emerging Doctrine of Appellate Acquittal, 8 Ind. L. Rev. 497 (1975).................................................................. 7,9,11 Wright, Federal Practice and Procedure, §470, 272-273 7 Supreme Court of tljeUnitrti States* OCTOBER TERM, 1977 IN THE No. 76-6528 DAVID WAYNE BURKS, Petitioner, UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE PETITIONER OPINIONS BELOW The judgment of the district court was entered February 25, 1976 (A. 13). The order of the district court denying the motion for new trial was entered March 12, 1976 (A. 18). The opinion of the United States Court of Appeals for the Sixth Circuit was filed December 30, 1976 and is reported at 547 F.2d 968. Petitions to rehear by both the United States and the defendant were denied February 8, 1977. (A. 159-160). JURISDICTION The judgment of the United States Court of Appeals for the Sixth Circuit was entered December 30, 1976. Petitions to 2 rehear filed by both petitioner and respondent were denied February 8, 1977. The petition for certiorari was filed April 11, 1977. This Court’s jurisdiction is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL, STATUTORY AND RULES PROVISIONS INVOLVED The Fifth Amendment to the Constitution of the United States provides in pertinent part: No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . Rule 29(a) of the Federal Rules of Criminal Procedure provides: Motion Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses . . . Title 28, United States Code provides: §2106. Determination The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances. QUESTIONS PRESENTED 1. Whether a retrial after a reversal for insufficient evidence violates the Double Jeopardy Clause of the Constitution. 2 3 2. Whether, assuming there is no violation of the Double Jeopardy Clause, the petitioner should be acquitted under 28 U.S.C. 2106 because just and appropriate. STATEMENT The petitioner Burks was charged with armed bank robbery in the Middle District of Tennessee. The petitioner entered a plea of not guilty by reason of insanity. At a jury trial in Nashville, two medical witnesses, a psychiatrist and psychologist, testified for the government. The psychiatrist could not give an opinion and the psychologist was ever asked for his opinion as to the sanity of the petitioner. Two psychiatrists and a psychologist called as witnesses by the petitioner testified he was legally insane within the meaning of the Smith test used in the Sixth Circuit. United States v. Smith, 404 F.2d 720 (C.A. 6). A timely motion for a judgment of acquittal under Rule 29(a), F. R. Crim. P., was made at the close of all the proof and denied. (A. 145) The petitioner was found guilty and received a twenty year sentence. The United States Court of Appeals for the Sixth Circuit found that the evidence was insufficient to sustain the verdict and reversed. Citing Bryan v. United States, 338 U.S. 552 and 28 U.S.C. 2106, the case was remanded to the district court to determine from a balancing of the equities whether a judgment of acquittal should be entered or a new trial ordered. This Court granted Burks’ petition for certiorari June 13, 1977. SUMMARY OF ARGUMENT Appellate reversals for new trials after a finding of insufficient evidence to sustain the conviction violate the Double Jeopardy Clause of the Fifth Amendment. The Court has never given adequate consideration to the double jeopardy aspect of a reversal for insufficient evidence. Bryan v. United States, 338 g 4 U.S. 522, the leading case, failed to differentiate between appellate reversals for trial errors, for which there is a strong public policy favoring retrials, and reversals for insufficient evidence for which there is logically a strong public policy against retrials. To the extent that Bryan is based on the fact that a defendant “waives” his right to an acquittal for either lack of evidence or by seeking alternatively a new trial, that waiver doctrine was put to rest once and for all by Green v. United States, 355 U.S. 184. In the event the Court does not wish to raise appellate reversals in the federal courts for insufficient evidence to a constitutional level, the Court under 28 U.S.C. 2106 should order the case dismissed as just and appropriate. ARGUMENT Introduction The Bryan Rule and Its Historical Antecedents “ [I]t is well settled that there is no constitutional right to an appeal.” McKane v. Durston, 153 U.S. 684. Indeed, for a century after this Court was established, no appeal as of right existed in criminal cases, and, as a result, appellate review of criminal convictions was rarely allowed.1 As the Court described this period in Reetz v. Michigan, 188 U.S. 505: ‘Trials under the Federal practice for even the gravest offenses ended in the trial court, except in cases where two judges were present and certified a question of law to this Court. Id., at 508.’ Abney v. United States, No. 75-6521, decided June 9, 1977. ‘“ [3] Appeals as of right in criminal cases were first permitted in 1889 when Congress enacted a statute allowing such appeals ‘in all cases of conviction of crime the punishment of which provided by law is death.’ Act of Feb. 6, 1889, 25 Stat. 656. A general right of appeal in criminal cases was not created until 1911. Act of March 3. 1911, 36 Stat. 1133.”4 5 Writing in Green v. United States, 355 U.S. 184, Justice Black said: The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitu tion, Blackstone recorded: . . the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.' Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall 163, at 169, . . . : ‘The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.’ 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. The relationship between the double jeopardy clause and retrial after appellate reversal began with Ball v. United States, 163 U.S. 662, 672, when it was held a defendant could be retried because it 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 offense of which he had been convicted. Ball and its progeny rested on the theory that the defendant by 5 6 asking for a new trial had “waived” a double jeopardy defense. Trono v. United States, 199 U.S. 521. The plurality opinion in Trono said: We do not agree to the view that the accused has the right to limit his waiver as to jeopardy, when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution for the offense set forth in the indictment.. . No power can wrest from him the right to so use that judgment, but if he chooses to appeal from it . . . he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense. 199 U.S. at 533. Ball involved a reversal for a defect in the indictment. A comprehensive history of the Double Jeopardy Clause is given in United States v. Wilson, 420 U.S. 332. This Court first considered the constitutionality of a reversal for a new trial after an appellate reversal for insufficient evidence in Bryan v. United States, 338 U.S. 552. After first deciding that 28 U.S.C. 2106 took precedence over Rule 29(a), F. R. Crim. P., petitioner’s double jeopardy argument was given short shrift: Petitioner’s contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, involving denial of his motion for judgment of acquittal. ‘. . . where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.’ Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462. See Trono v. United States, 199 U.S. 521, 533, 534. 338 U.S. at 560. The two cases cited in support of the Court’s holding involved reversals for procedural errors, rather than for insufficiency of evidence. The holding in Bryan has been considered tangentially but never directly in Sapir v. United States, 348 U.S. 373,2 2Brief per curiam order that indictment be dismissed after appellate reversal for insufficient evidence. Impossible to tell if dismissal on constitutional grounds or §2106. Mr. Justice Douglas in a concurring opinion noted that a new trial would be double jeopardy. 348 U.S. at 374. 6 7 Yates v. United States, 354 U.S. 298,l * 3 and Forman v. United States, 361 U.S. 416.4 See also United States v. Tateo, 377 U.S. 463, 466.5 The holding in Bryan has been criticized by every court or commentator which has attempted an analysis.6 Many circuits have not repudiated Bry’an but have strictly limited its application to cases wherein the accused requested a new trial in the district court or on appeal. These circuits, under the statutory authority of 28 U.S.C. 2106, have established the policy of directing acquittals following reversals for insufficiency of the evidence.7 lBryan reaffirmed without discussion. “[Wle would no doubt be justified in refusing to order acquittal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in the alternative for a new trial as well as for acquittal.” 354 U.S. at 328. 4Attempt to reconcile Bryan and Sapir. Validity of Sapir implicitly recognized. sBryan apparently reaffirmed by way of citation. 6Sumpter v. DeGroote, C.A. 7, No. 76-1849, decided April 1, 1977; United States v. Wiley, 517 F.2d 1212, 1215-1217 (C.A. D.C. 1975); People v. Brown, 99 111. App. 2d 281, 241 N.E.2d 653, 661-62 (1968); C. Wright, Federal Practice and Procedure, §470, at 272-273; Thompson, Reversals for Insufficient Evidence: The Emerging Doctrine o f Appellate Acquittal, 8 Ind. L. Rev. 497, 507-510 (1975); Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, U. Chi. L. Rev. 365, 367 (1964); Cahan, Granting the State a New Trial After an Appellate Reversal for Insufficient Evidence, 57 111. B.J. 448, 452-455 (1969); Mayers and Yarbrough, Bis Vexaris: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 6-7, 19-22 (1960); 8 Moore’s Federal Practice, §29.09(2] at 29-57 (1976); Fisher, Double Jeopardy: Six Common Boners Summarized, 15 U.C.L.A. Law Review 81-84 (1967). 7Green v. Massey, 546 F.2d 51 (C.A. 5); United States v. Howard, 432 F.2d 1188 (C.A. 9); United States v. Wiley, 517 F.2d 1212, 1215-1221 (C.A. D.C. 1975); United States v. Dotson, 440 F.2d 1224, 1225 (C.A. 10); United States v. Howard, 432 F.2d 1188, 1191 (C.A. 9); United States v. Williams, 348 F.2d 451 (C.A. 4), cert, denied, 384 U.S. 1022. See also. United States v. Fusco, 427 F.2d 361, 363 (C.A. 7); Wright, supra, note 6. at 272; United States v. Robinson, 545 F.2d 301. 305, n.5 (C.A. 2). The Sixth Circuit has been inconsistent. This case was remanded for a possible new trial. In another case, United States v. Rosenbarger, 536 F.2d 715, 721, after a reversal for insufficient evidence, the Sixth Circuit said: “To allow the Government on remand to submit additional proof. . . would violate the prohibition against double jeopardy contained in the Constitution. ' 8 I. A RETRIAL AFTER A REVERSAL FOR IN SUFFICIENT EVIDENCE VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION. Bryan has been unanimously criticized insofar as it dealt with the double jeopardy issue.8 The double jeopardy question received only cursory consideration in the last paragraph of the twelve- paragraph opinion. Judge Bauer for the Seventh Circuit in Sumpter v. DeGroote, supra, wrote: Moreover, rather than serving the ‘sound administration of justice,’ we believe the Ball rule operates in practice as an engine of inequity when applied in cases such as Bryan. Unlike reversals due to procedural errors of law that impair effective presentation of the defendant’s case, reversals based on the failure of the prosecution’s proof represent the judgment of an appellate court that the defendant was entitled to a directed acquittal at trial. By subjecting defendants who win such appellate reversals to retrial, Bryan serves to heighten rather than mollify disparities inherent in our criminal justice system, for, had the defendants been before other trial judges, they may well have received the directed acquittals to which they were entitled—acquittals from which the prosecution would have no appeal. Fong Foo v. United States, 369 U.S. 141 (1962). By permitting defendants similarly situated with respect to their right to a directed acquittal to be treated differently, Bryan works to undermine rather than promote the fair and impartial administration of criminal justice. In summary, we believe that the premises of the fairness rationale for the Ball rule adopted in Wilson—the societal interest in punishing the guilty and the need to promote the sound administration of justice—do not require the rule’s application in a case such as this. Sumpter was, by the The primary issue in Bryan was whether Rule 29(a), F. R. Crim. P. takes precedence over 28 U.S.C. 2106. Held, §2106 was controlling. For authorities suggesting Bryan should be re-examined see n.6, supra. 9 Indiana Supreme Court’s own admission, not proven guilty of the crime of prostitution as defined by the Indiana law applicable at the time of her arrest and trial. The State, having been given an opportunity to vindicate its interest in trying her, had failed to establish the validity of its interest in punishing her. To permit the State a second bite at the apple in these circumstances would not only inteiject inequity into the administration of criminal justice but also serve to condone and perhaps perpetuate careless prose cutorial trial preparation and practice. (Footnotes omitted.) It is said in Thompson, n.6, supra, at 506-507, 510: The Court in Bryan failed to note that the earlier cases upon which it relied involved reversals for procedural irregularities, and the evidence in those cases was sufficient to sustain the judgments. Without considering this distinc tion, the Court summarily applied the rule of Ball that a defendant who secures an appellate reversal of his conviction may not claim double jeopardy as a defense to retrial — regardless of the reason for reversal. * * * Moreover, if the Court were faced with the issue again, it is doubtful, at least in a federal case, whether it would continue to follow the Bryan rationale. The logic of the state court decisions and the emerging doctrine of appellate acquittal which has developed after the decision in Forman [v. United States, supra| is irrefutable. And the Court has not been reluctant in recent years to expand the application of the double jeopardy principle. As said in Comment, 31 U. Chi. L. Rev. 365, n.6, supra: The cursory treatment given the double jeopardy problem in the Bryan case reveals the Court's feeling that no new, significant double jeopardy question had been presented. Reversals for insufficient evidence as in Bryan present a significantly different double jeopardy question than do reversals for procedural errors. Furthermore, the waiver rationale of Bryan was rejected in Green v. United States, 355 U.S. 184. 9 10 A. Reversal for Insufficient Evidence Should Result In Acquittal Because Such Reversal Differs Significantly from Reversal for Procedural Error. It was said in Comment, 31 U. Chi. L. Rev. 365, 371, 372: [T]he considerations which justify a new trial after a reversal for error are lacking where the reversal is for lack of evidence. Instead of a presumption that the burden of proof of the prosecution has probably been met, the appellate court is specifically holding that the burden has not been met. Society should have no more fear of releasing such a defendant than of releasing a defendant who has been acquitted by a jury, perhaps even less since a jury acquittal may be based on error or on an improper weighing of the evidence. Yet in the federal system and in most states, no appeal is allowed the state after an acquittal. Furthermore, there is no reason to fear that an appellate court judge, deprived of the new trial alternative, would affirm a conviction where he now would reverse and grant a new trial for insufficient evidence. In the federal courts it is not enough for a judge to feel that on his reading of the record he would have voted for acquittal. ‘It is not for [a reviewing court] . . . to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.’ Thus where a judge now would be willing to reverse, he should have no objection to acquitting. He certainly should not prefer the conviction of a defendant where he not only would vote for acquittal himself but also thinks that there is no substantial evidence to support the trial court conviction. * * * No undue burden is imposed on society by releasing those defendants whose convictions have been reversed for lack of evidence. The oppression and harassment which the double jeopardy clause was designed to prevent is clearly present in a new trial following a reversal for insufficient evidence. For in the insufficient evidence case an appellate court is in essence saying, ‘Well, the prosecution did not prove you guilty this time but they can have another chance.’ Although it would not be necessary for the 10 Supreme Court to raise the distinction between reversal for error and reversal for insufficient evidence to the stature of a constitutional principle—invocation of the Court’s super visory power might be considered more appropriate—the Court should explicitly recognize that the same considera tions which prohibit a new trial where an accused has been acquitted at trial apply with equal force following an appellate reversal for insufficient evidence. It is said in Thompson, Reversals for Insufficient Evidence, n.6 supra, at 501-502, 513, 514-515, 517-518: The arguments favoring application of the double jeopardy clause to appellate reversals for insufficient evidence are compelling. At the first trial the State exercised its opportunity to convict the accused and, as a matter of law, the evidence failed to establish guilt. Should the State be given the opportunity to buttress its case at a second trial or, for harassment only, seek a second guilty verdict on the same insufficient evidence? By reason of the insufficiency the judgment of conviction was reversed. Clearly, the defendant should have been acquitted in the trial court, and that acquittal would have barred a second trial for the same offense. Logic would dictate a similar result when the acquittal comes at the appellate level, for it is a miscarriage of justice that the defendant was not acquitted at trial. * * * There is no substantial difference between a defendant who requests a directed verdict and one who raises the issue for the first time in the motion to correct errors. Both are calling the attention of the trial court to the legal insufficiency of the evidence and are requesting appropriate relief. In either case the trial court is empowered to acquit the accused. A review of the policies underlying the double jeopardy provisions reveals no basis upon which such differential treatment could be grounded. Fundamentally, the State is given one opportunity, and one only, to convict a citizen of a crime. The purpose of the double jeopardy clause is to protect the individual from the hazards of repeated trials and possible conviction for the same offense. 11 11 12 * * * [A] defendant who was improperly acquitted in the trial court is free from further prosecution. Yet a defendant who was entitled to acquittal in the trial court but was compelled to appeal from an improper conviction may be subjected to retrial. No justification for such disparate treatment exists. This injustice is especially pervasive when an appellant, who was wrongfully convicted, remains incarcerated pending his appeal because of his inability to make bail. Even though the costs of his legal defense may be borne by the county, an impecunious defendant pays for his retrial through loss of liberty. Moreover, the effect of the present state of the law could be to afford broader constitutional protection to a defendant who is shown to be prima facie guilty. Even if palpably erroneous, a directed verdict of acquittal at the trial level could protect a guilty defendant from the hazards of retrial after a reversal of the conviction upon appeal. On the other hand, a defendant who is not shown to be prima facie guilty, and who in fact may be innocent, could be subjected to a new trial. Thus, the present state of the law in the context of individual cases is calculated to shield the guilty and persecute the innocent. * * * Different considerations are apparent with respect to reversals for reasons other than insufficient evidence. For example, when a reversal is based upon improper jury instructions or some pretrial procedural irregularity, a defendant may have been denied a fair trial even though the evidence of guilt was overwhelming. It is far better that a defendant be given a fair trial upon remand than to extend the harmless error doctrine as a basis for affirmance. In such a case, the accused was not entitled to acquittal in the trial court, nor should such relief be afforded in the appellate court. The security of the community at large may be preserved by a new trial while also securing the defendant’s right to a fair trial. The defendant who is not shown to be prima facie guilty, however, in theory, represents no threat to the community. Whether the defendant in such a case is acquitted at trial or upon appeal should make no difference. In either case the accused should not be retried.12 13 Moreover, the security of the community, preserved by the imposition of criminal sanctions, has never been the sole consideration of our criminal justice system. Even though defendants may be guilty, countervailing policies immunize from prosecution those who have been denied their rights to speedy trials or who have not been brought to justice within the statutory period. If public policy requires retrial of defendants acquitted upon appeal, it can also be argued that the same policy requires retrial of defendants acquitted in the trial court. In either case, the State may be able to develop additional evidence sufficient to support a convic tion. The double jeopardy bar, however, was explicitly designed to prohibit this kind of continuing persecution of the accused. B. The Petitioner Did Not Waive His Right to an Acquittal by Taking an Appeal. Early decisions of this Court posited that the accused “waived” his double jeopardy rights by taking an appeal. Murphy v. Massachusetts, 111 U.S. 155, 158 (“[A] convicted person cannot by his own art avoid the jeopardy in which he stands, and then assert it as a bar to subsequent jeopardy.”) United States v. Ball, 163 U.S. 662, 672 said: [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 offense of which he had been convicted. The Ball doctrine for years was unanimously accepted by the courts. The dominant theory was that the defendant, by successfully appealing his erroneous conviction, “ waived” the protection against being retried for the same offense which the former judgment afforded him. As said in Mayer and Yarbrough, n.6, supra, at 6: Yet it is obvious that a waiver rationale here, as elsewhere, serves only to state the conclusion without explaining the reason for it. The defendant, if given his 13 14 choice, would prefer both to have and eat his cake; but the term ‘waiver’ connotes a voluntary act. Furthermore, the waiver theory must start with the assumption that the Constitution itself protects the defendant from a new trial after appeal, absent his consent. If this premise were correct, then Justice Holmes’ criticism of the waiver rationale would seem indisputable: ‘[I]t cannot be imagined that the law would deny to a prisoner the correction of a fatal error unless he should waive other rights so important as to be saved by an express clause in the Constitution. . .’ [Kepner v. United States, 195 U.S. 100, 135 (dissenting opinion)]. The “waiver” theory was dismissed by this Court in the double jeopardy decision of Green v. United States, 355 U.S. 184, 192 where the waiver argument was said to be “wholly fictional.” The Court found a defendant convicted of a serious crime “has no meaningful choice” but to appeal his conviction. Such an appeal could not be termed a voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458. C. The Petitioner Did Not Waive His Right to an Acquittal by Asking for a New Trial. The petitioner seeks a new trial only as an alternative to a judgment of acquittal. Here, counsel at the conclusion of all the proof moved for a judgment of acquittal (A. 145). The petitioner is not asking to be tried over again. He is merely asking for his legal rights. Rule 29(a), F. R. Crim. P., provides the trial court “ shall” acquit him “after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.” Mr. Justice Douglas in a concurring opinion in Sapir v. United States, supra, 348 U.S. 373, 374, wrote: If the petitioner had asked for a new trial, different considerations would come into play for then the defendant opens the whole record for such disposition as might be just. 14 15 Sapir was decided two years before Green, supra which held “wholly fictional” the old waiver rule. As said by the court in People v. Brown, 99 111. App.2d 281, 241 N.E.2d 653, 662 (1968): We can think of no reason in fairness and justice why a defendant on appeal should be required to discard his right to seek a new trial based on trial errors, in order to validate his right to seek an outright reversal for lack of evidence. In any sensible consideration of his position the former is seen to be a second-choice alternative to the latter. If his double jeopardy rights are deemed to have been waived by his request for a new trial, the waiver should then take effect only if the reversal is granted for the reasons contained in the new-trial request, and, if the conviction is reversed for lack of evidence, the waiver contained in an accompanying request for a new trial would never become operative. Application of the waiver doctrine results in an anomoly. A trial court must (“shall”) enter a judgment of acquittal as a matter of right to the defendant, whereas the appellate court has discretion to order a new trial. The unfairness is increased if we accept the proposition that appellate courts sitting in panels and with more time for reflection err less frequently than would a trial judge, especially since the trial judge would ordinarily make his decision without the written transcript. A defendant convicted on insufficient evidence is in a similar plight. He could, of course, serve his sentence and be free of a subsequent prosecution, but this is hardly an acceptable alternative. If he appeals on the ground that he should have been acquitted at trial, and the appellate court is in accord, why should he be any more subject to retrial than his counterpart who was acquitted at trial? By imposing a coerced waiver of the double jeopardy defense, courts penalize the accused for successfully attacking an erroneous judgment. The extension of the Green rationale to reversals for insufficient evidence would invalidate Bryan as a basis for remand and retrial. Thompson, n.6, supra, at 516-517. The petitioner should not be denied a judgment of acquittal to which he is entitled on a theory this Court characterized as 15 16 “wholly fictional” in Green, supra. There is no reason why the defendant would “waive” an acquittal by asking for a new trial as alternative relief. Judicial notice could be taken that any defendant would rather have an acquittal than a new trial. II. ASSUMING THERE IS NO VIOLATION OF THE DOUBLE JEOPARDY CLAUSE, THE PETITIONER SHOULD BE ACQUITTED UN DER 28 U.S.C. 2106 BECAUSE JUST AND APPROPRIATE. A literal absolutist interpretation of the Double Jeopardy Clause would not distinguish between reversals for trial errors or reversals for insufficient evidence. Policy considerations have determined over the years the scope of the clause. Justice Harlan in United States v. Tateo, 377 U.S. 463, 466 argued that appellate courts would be very reluctant to reverse a conviction if retrial were not available: While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendant’s rights as well as society’s interest. 16 17 As a matter of fundamental fairness, apart from Fifth Amendment reasons, society has no interest in retrying a defendant against whom the evidence was insufficient at the first trial. The fairness rationale of Tateo, supra, would forbid a second trial in insufficiency cases in general for two reasons. First, the prosecution must be on its toes to put forth all the evidence the first time. In both Brown and Wiley, supra, the prosecutors asked for retrials, pointing out that additional witnesses could be called the second time around. These arguments were rejected as fundamentally unfair. This point was illustrated by the court in Brown, n.6, supra, 241 N.E.2d 653, 660 n.3: In his petition for rehearing, the State’s Attorney seeks to support his argument by noting that, in answer to a Bill of Particulars, the State listed 18 possible witnesses, whereas at the trial only 7 took the stand. We do not consider that an adequate representation has been made as to the additional evidence which would, with certainty, be presented at a new trial, even if this were clearly the only criterion for remandment. This case thus presents a good example of what we have in mind: at a second trial the State might use 10 or 12 witnesses and, if reversed again, maybe 15 would be presented at a third trial, and so on. Only one witness is claimed to have been unavailable (absent from the city) at the time of trial. The record does not disclose, however, that the State made any attempt to obtain a continuance on that account, pursuant to the Code of Criminal Procedure, 111. Rev. Stat. (1965), ch. 38, § 114-4(c)(2). Having remanded for a new trial, it would appear to be impractical for a reviewing court to attempt control of such trial to insure that evidence more satisfactory to the prosecution would be introduced. The new trial could not very well be granted on that condition (even if we were to consider this a desirable procedure, which we do not), and, if it were, the standard would be impossible of practical application. Suppose, further, that the State were to introduce only the same evidence at the new trial and manage again to obtain a conviction. What then? Nor would an acquittal in this circumstance serve as a solution to the problem, because the constitutional guaranty is not against 17 a second conviction, but against being placed in repeated jeopardy through trial. See also, Cahan, n.6, supra, at 461. Second, defendants may be treated unfairly by the same court. Compare the reversal by the Sixth Circuit in United States v. Rosenbarger, supra, with the Sixth Circuit’s treatment of the defendant in this case. In an earlier case where the Sixth Circuit reversed for lack of evidence of sanity of the defendant, the remand was to the district court for a hearing with instructions to grant a new trial or dismiss “ unless the Government was unfairly prevented from producing competent evidence.” United States v. Smith, 437 F.2d 538, 542. The remand in the instant case from the Sixth Circuit adopts a different standard in use in another circuit. See United States v. Bass, 490 F.2d 846, 852-853 (C.A. 5) (District judge may refuse to permit a retrial “ if he finds from the record that the prosecution had the opportunity to develop its case . . . at the first trial.") An egregious disparity of treatment was given as an illustration in Cahan, n.6, supra, at 449. Two defendants were convicted separately and independently of the crime of rape. Both cases were reversed by reviewing courts because the evidence was neither clear and convincing nor corroborated as required by law. One case was remanded for retrial and the other was reversed outright. There is no evidence here that admissible evidence which would have made the Government’s case was wrongfully withheld. No failure of the petitioner contributed to this failure of the Government to make a case. Using its power under §2106, the Court should order the entry of a judgment of acquittal if it finds no Fifth Amendment violation. The standards for the district judges on remand should be made uniform in each circuit. 18 18 19 CONCLUSION For the foregoing reasons, it is respectfully submitted that a judgment of acquittal should be ordered to be entered. If remanded, the standard should be a new trial only if the Government was unfairly prevented from producing evidence at the previous trial. BART C. DURHAM. Ill 1104 Parkway Towers Nashville, Tennessee 37219 Attorney for Petitioner 19 No. 76-6528 lit i t j&tjrrtmt a j« i »f Ife litW States O c to b er T e r m , 1977 D a v id W a y n e B u r k s , p e t it io n e r v. U n it e d S t a t e s o f A m e r ic a ON W R IT OF C E R T IO R A R I TO T H E U N IT E D S T A T E S CO U RT OF A P P E A L S F O R T H E S I X T H C IR C U IT BRIEF FOR THE UNITED STATES D A N IE L M. F R IE D M A N , A cting So licitor General, B E N JA M IN R. CIV IL ETT I, A ssis ta n t A tto rn ey General, F R A N K H . EASTERBROOK, A ssis ta n t to the Solicitor General, M ICH AEL W . FARRELL, H E N R Y W A LK E R , A ttorneys, D epartm en t o f Justice, W ashington, D.C. 20530. 21 I N D E X Pftffe Opinions below____________________________________ 1 Jurisdiction----------------------------------------------------------- 1 Question presented_________________________________ 2 Constitutional provision and statute involved___________ 2 Statement ________________________________________ 3 Summary of argument--------------------------------------------- 7 Argument: The Double Jeopardy Clause does not invariably pro hibit the holding of a second trial if the court of ap peals concludes that the interests of justice require such a trial after a reversal for insufficient evidence ____________________________________ * 12 A. A second trial ordinarily may be held after a conviction is reversed on appeal__________ 12 B. This Court has allowed second trials after reversals for insufficiency of the evidence__ 17 C. There is no bright line between insufficiency of the evidence and legal error at trial_______ 21 1. Legal and factual issues may be in extricably intertwined_____________ 21 2. Even genuine deficiencies in the evi dence may be attributable to the defendant or to legal error_________ 24 3. An inflexible rule barring retrials would deter appellate courts from giving defendants the benefit of the doubt in close cases_______________________ 29 4. Evidence relating to affirmative defenses presents problems unlike those that arise when the proof does not estab lish one of the elements of the offense _________________________ 32 (i) 23 II Arguments—Continued page D. Appellate courts should be permitted to re quire or allow second trials when that course is just and reasonable___________________ 37 Conclusion________________________________________ 40 C IT A T IO N S Cases: Abney v. United States, No. 75-6521, decided June 9, 1977 ________________________________________ 13 Amador Beltran v. United States, 302 F. 2d 48_______ 35 Boylan v. United States, 257 U.S. 614_____________ 2 Barnes v. United States, 412 U.S. 837_____________ 22 Brady v. Maryland, 373 U.S. 83---------------------------- 36 Breed v. Jones, 421 U.S. 519_____________________ 13,14 Brock v. North Carolina, 344 U.S. 424______________ 16 Brown v. Ohio, No. 75-6933, decided June 16,1977----- 13 Bryan v. United States, 388 U.S. 552------------------- 7,17, 39 Clyatt v. United States, 197 U.S. 207---------------------- 17 Cook v. United States, 362 F.2d 548----------------------- 30 Commissioner v. Estate of Bedford, 325 U.S. 283------ 2 Dann v. Chat-field, certiorari denied, October 3, 1977 (No. 76-1559)________________________________ 2 Davis v. United States, 160 U.S. 469---------------------- 33 Department of Banking v. Pink, 317 U.S. 264----------- 2 Dotson v. United States, 440 F. 2d 1224_____________ 38 Douglas v. United States, 239 F. 2d 52------------------- 35 Forman v. United States, 361 U.S. 416---------------13,19, 20 Glasser v. United States, 315 U.S. 60---------------------- 21 £roW v. United States, 367 U.S. 364------------------------- 16 Green v. United States, 355 U.S. 184---------------------- 13,14 Greene v. Massey, 546 F. 2d 51, certiorari granted, June 20, 1977 (No. 76-6617)_____________________ 19 Hopkins v. United States, 275 F. 2d 155---------------- 35 Jeffers v. United States, No. 75-1805, decided June 16, 1977 _________________________________________ 13 Julian v. United States, 391 F. 2d 279______________ 35 Leary v. United States, 395 U.S. 6------------------------- 22 Lelanel v. Oregon, 343 U.S. 790----------------------------- 34 Ludwig v. Massachusetts, 427 U.S. 618------------------- 13 McGautha v. California, 402 U.S. 183------------------------- 36 24 Ill Cases—Continued „P age Murphy v . Massachusetts, 177 U.S. 155_____________ 13 North Carolina v. Pearce, 395 U.S. 711__________12,13,19 Patterson v. New York, No. 75-1861, decided June 17, 1977 _______________________________________ 33 Pfister v. Northern Illinois Finance Corp., 317 U.S. 144 ________________________________________ 2 Price v. Georgia,, 398 U.S. 323____________________ 13 Rucker v. United States, 288 F. 2d 146______________ 35 Sapir v. United States, 348 U.S. 373________________ 13 Scarborough y. United States, No. 75-1344, decided June 6,1977__________________________________ 22 Schacht v. United States, 398 U.S. 58_______________ 1 Sosa v. State, 215 So. 2d 736______________________ 31 Speiser v. Randall, 357 U.S. 513___________________ 33 Stroud v. United States, 251 U.S. 15_______________ 13 Sumpter v. DeGroote, 552 F. 2d 1206_______________ 20, 23 Trono v. United States, 199 U.S. 521----------------------- 13 United States v. Alvarez, 519 F. 2d 1036------------------- 36 United States v. Ball, 163 U.S. 662----------------------- 7,12,26 United States v. Barfield, 405 F. 2d 1209---------------- 35 United States v. Barker, 558 F. 2d 899---------------------- 19 United States v. Bass, 404 U.S. 336------------------------- 22 United States v. Bass, 490 F. 2d 846----------------------- 6,35 United States v. Bertolotti, 529 F. 2d 149---------------- 23 United States v. Ciofji, 487 F. 2d 492, certiorari denied sub nom. Ciuzio v. United States, 416 U.S. 995-------- 26 United States v. Dinitz, 424 U.S. 600---------------------- 13 United States v. Dube, 520 F. 2d 250-------------------- 28 United States v. Dunn, 299 F. 2d 548-------------------- 35 United States v. Ewell, 383 U.S. 116----------------------- 13 United States v. Fay, 533 F. 2d 1247-------------------- 26 United States v. Koward, 432 F. 2d 1188-------- 11,20, 27,37 United States v. Jorn, 400 U.S. 470------------- 7,15,16,19, 32 United States v. Koonce, 485 F. 2d 374------------------ 38 United States v. Lefkowitz, 284 F. 2d 310--------------- 30 United States v. Martin Linen Supply Co., No. 76-120, decided April 4,1977---------------------------------------- 26 United States v. McGraw, 515 F. 2d 758------------------- 35 United States v. Parks, 460 F. 2d 736--------------------- 35 United States v. Robinson, 545 F. 2d 301--------------- 19 25 Cases—Continued Page United States v. Smith, 437 F. 2d 538____________ 27,35,38 United States v. Snider, 502 F. 2d 045______________ 38 United States v. Steinberg, 525 F. 2d 1126__________ . 11, 20 United States v. Tateo, 377 U.S. 463________9,13,14,29,32 United States v. Wiley, 517 F. 2d 1212________ 11, 20, 27, 37 United States v. Wilson, 399 F. 2d 459______________ 35 United States v. Wilson, 420 U.S. 332______________ 12,14 United States v. Wright, 511 F. 2d 1311_____________ 36 Wade v. Hunter, 336 U.S. 684_____________________ 15 TFatf&ms v. United States, 409 F. 2d 1382, certiorari denied, 396 U.S. 921___________________________ 35 Whalem v. United States, 346 F. 2d 812_____________ 36 Wiborg v. United States, 163 U.S. 632_____________ 17 IF inship. In re, 397 U.S. 358______________________ 33 Tates v. United States, 354 U.S. 298_______________ 18 Constitution and statutes: United States Constitution: Fourth Amendment_________________________ 26 Fifth Amendment__________________ _________ 2 Double Jeopardy Clause_____________2,7,12,18,25,22 18 U.S.C. 2113____ 23 18 U.S.C. 2113(d)_______________________________ 3 18 U.S.C. 2113(e)_______________________________ 3 28 U.S.C. 2106_______________________ 2,10,17,20,25,37 Miscellaneous: 1 Annals of Congress (1789)_____________________ 12 Comment, Double Jeopardy: A New Trial After Ap pellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 365 (1964)____________________________ 20 Federal Rules of Criminal Procedure: Rule 29(a)________________________________ 6 Rule 2 9 (c )________________________________ 5 Rule 33___________________________________ 31 Federal Rules of Evidence, Rule 704_____________ 28 McCormick, Handbook of the Law of Evidence § 12 (Cleary ed. 1972)_____________________________ 28 Thompson, Reversals for Insufficient Evidence : The Emerging Doctrine of Appellate Acquittal, 8 Ind. L. Rev. 497 (1975)___________________ 20 2 Wright, Federal Practice and Procedure: Criminal §470 (1969)_________________________________ 19 $ « jftc djtmtf of to W tiiM staffs O c to b er T e r m , 1977 No. 76-6528 D avid W a y n e B u r k s , p e t it io n e r v. U n it e d S t a t e s o f A m e r ic a ON W R IT OF C E R T IO R A R I TO T H E U N IT E D S T A T E S C O U RT OF A P P E A L S F O R T H E S I X T H C IR C U IT BRIEF FOR THE UNITED STATES OPINIO NS BELOW The opinion of the court of appeals (A. 155-158) is reported at 547 F.2d 968. The opinion of the dis trict court (A. 18-20) is not reported. JU R ISD IC T IO N The judgment of the court of appeals was entered on December 30, 1976. Petitions for rehearing filed by both petitioner and the United States were denied on February 8,1977 (A. 159-160). The petition for a writ of certiorari was filed on April 11, 1977,1 and was 1 The petition was 32 days out of time under Rule 22(2) of the Rules of this Court. Petitioner has offered the explanation that a ( 1) granted on June 13, 1977 (A. 161). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTION PR E SE N T E D Whether the Double Jeopardy Clause invariably bars a retrial after a court of appeals concludes that the evidence, although sufficient to show commission of the crime, does not adequately establish the de fendant’s sanity. CONSTITUTIONAL P R O V ISIO N A N D STA T U TE IN V O LV ED The Fifth Amendment to the United States Con stitution provides in relevant part: * * * [1ST]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *. 28 U.S.C. 2106 provides: The Supreme Court or any other court of appellate jurisdiction may affirm, modify, va cate, set aside or reverse any judgment, decree, stay of mandate granted by the court of appeals extended the time within which to file a petition. This is incorrect; the time within which to file a petition runs from the entry of judgment or, in this case, from the denial of a petition for rehearing. The criti cal date is the date on which the judgment becomes final, not the date upon which it becomes effective. Department of Banking v. Pink, 317 U.S. 264, 266; Boylan v. United States, 257 U.S. 614; Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 149-150. The date on which mandate issues therefore is irrelevant unless the appellate court treats its mandate as its judgment. Commis sioner v. Estate of Bedford, 325 U.S. 283; Dawn v. Ch-atfield, cer tiorari denied, October 3, 1977 (No. 76-1559). The Sixth Circuit does not treat its mandate as its judgment, and the petition is therefore untimely. Cf. Schacht v. United States, 328 U.S. 58, 64 (the time requirements of Rule 22(2) are not jurisdictional and may be relaxed “when the ends of justice so require”). I 2 28 3 or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further pro ceedings to be had as may be just under the circumstances. STATEM ENT An indictment returned in the United States Dis trict Court for the Middle District of Tennessee charged petitioner with robbing a federally insured bank by use of a dangerous weapon, in violation of 18 U.S.C. 2113(d), and with kidnapping to avoid ap prehension for the robbery, in violation of 18 U.S.C. 2113(e) (A. 4-5). Before trial the kidnapping count was dismissed on the government’s motion (Tr. 14). At trial petitioner challenged the sufficiency of the proof of the robbery; his major defense, however, was that he was insane at the time of the robbery. He called three expert witnesses who testified, albeit with differing diagnoses of petitioner’s condition, that he “suffered from a mental illness at the time of the bank robbery and that he was substantially incapable of conforming his conduct to the requirements of the law against robbing banks” (A. 155). The prosecution called two expert witnesses. The first, Dr. R. James Farrer, agreed with two of peti tioner’s experts that petitioner possessed a “character disorder” and had robbed the bank as a means “to solve inner problems” by getting caught, but he re fused to classify petitioner as “mentally ill” (A. 113- 116, 122). The second expert, Dr. Denton Buchanan, 29 4 also acknowledged that petitioner had a character dis order manifested by an occasional “ defiant act,” in this case robbing the bank “to get caught, [as] a way of being defiant towards his parents” (A. 128-129, 135, 138). Asked whether in his judgment petitioner had been able on the day of the robbery to “conform his conduct to the rules of society,” Dr. Buchanan stated that petitioner’s conduct in preparation for the robbery showed that he was “capable of obeying at least some laws but [that] clearly by [his] behavior he did not obey another law” (A. 142-143). Dr. Bu chanan explained that petitioner is aggressive but that “ [t]here is no indication of a psychotic process at present or the remnants of a previous psychotic reac tion, [Petitioner’s] intellectual functioning is in the superior range” (A. 126). Finally, the prosecution produced testimony of eye witnesses to the robbery, of a taxi driver who had en countered petitioner immediately before the robbery, and of the arresting officers; these witnesses agreed that petitioner appeared to be fully in control of him self at the time of the robbery (A. 23-24, 29; Supp. Tr. 27-29). Petitioner’s employment supervisor also testified that, during the weeks, preceding the robbery, petitioner had been able to perform the tasks de manded by his job (A. 157). Before the case was submitted to the jury, the dis trict court invited petitioner to move for a judgment of acquittal; petitioner did so, and the court promptly denied the motion (A. 145). The case was submitted to the jury, which returned a verdict of guilty (A. 154). 30 5 Petitioner then filed a motion for a new trial, con tending, among other things, that “ [t]he evidence was insufficient to support the verdict” (A. 15). Petitioner did not file a motion for a judgment of acquittal, al though Fed. R. Crim. P. 29(c) provides that such mo tions may be filed within seven days of the verdict. The district court denied the motion for a new trial (A. 18-20). I t concluded that the contention “that the evidence was insufficient to support the verdict * * * is utterly without merit” (A. 18). The court sentenced petitioner to 20 years’ imprisonment, with immediate eligibility for parole (A. 13-14). On appeal, petitioner conceded that he robbed the bank as charged (A. 158). The only questions on ap peal therefore concerned the insanity defense. The court of appeals concluded that the government’s evi dence had not “effectively” (A. 157) overcome the p rim a facie showing by petitioner’s experts that peti tioner was insane at the time of the robbery. The court believed that the prosecution’s witnesses, despite hav ing given “detailed accounts of their contacts with [petitioner] and opinions concerning his emotional problems, [had] * * * not express [ed] definite opin ions on the precise questions which this court has identified as critical in cases involving the issue of sanity” (A. 157). Because the witnesses had not ex pressed their opinions on the ultimate questions, the court held, the evidence of sanity was insufficient. The court observed that petitioner had moved for a new" trial because of the insufficiency of the evi dence, and it remanded the case for a hearing at which the district court is to determine whether the 31 6 prosecutor lias additional evidence to present on the issue of petitioner’s sanity (A. 157-158). I t instructed the district court to “balane[e] * * * the equities” at the hearing and either to enter a judgment of acquit tal or to set the case for retrial (A. 158).2 The court of appeals adopted the standards and procedures out lined in U nited S ta tes v. Bass, 490 F. 2d 846, 852- 853 (C.A. 5) (see A. 158) : [W]e reverse and remand the case to the dis trict court where the defendant will be entitled to a [judgment] of acquittal unless the govern ment presents sufficient additional evidence to carry its burden on the issue of defendant’s sanity. * * * If the district court, sitting with out the presence of the jury, is satisfied by the government’s presentation, it may order a new trial. * * * Even if the government pre sents additional evidence, the district court may refuse to order a new trial if he finds from the record that the prosecution had the opportunity fully to develop its case or in fact did so at the first trial. Under this standard petitioner will be exposed to a second trial if (a) the prosecution offers additional evidence sufficient to establish petitioner’s sanity, and (b) the prosecution establishes that it did not have the opportunity fully to develop its ease at the first trial. 2 The court of appeals referred to a “directed verdict * * * of acquittal,” but directed verdicts have been abolished. Fed. R. Crim. P. 29(a). 32 7 SU M M A R Y OF A RG UM ENT A. I t has long been settled that a defendant may be retried after his conviction has been reversed at his request. U nited S ta tes v. B all, 163 TT.S. 662. Although a number of rationales have been advanced for this unquestioned rule, the most satisfactory is that second trials often represent the best resolution of whatever conflict there may be between the defendant’s interest in avoiding multiple trials and the public interest in obtaining convictions of those guilty of crime, The de cision to allow reprosecution “reflects the judgment that the defendant’s double jeopardy interests, how ever defined, do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single [trial] free from harmful governmental or judicial error.” U nited S ta tes v. Jorn , 400 U.S. 470, 484 (plurality opinion). B. The conclusion that a second trial represents the fairest resolution of the competing interests is least strong when the evidence is insufficient at the first trial to support a conviction. The Double Jeopardy Clause was designed, in part, to prevent the prosecution from having repeated opportunities to muster enough evi dence to convict the defendant. But the Court held in B rya n v. U nited S ta tes, 338 U.S. 552, that the Double Jeopardy Clause does not prohibit a second trial after a conviction has been reversed for insufficient evidence. B rya n has been criticized, and to. the extent it holds that a defendant uniformly may be tried a second time 33 8 after reversal on appeal, it has been undermined by subsequent cases. But the rationale for permitting re trials applies in many cases that might be character ized as reversals for insufficiency of the evidence. Al though no rule uniformly permitting retrials is appro priate, neither is a rule uniformly forbidding retrials consistent with the ends of public justice. C. There is no bright line between insufficiency of the evidence and legal error that would justify a rule uniformly forbidding retrials in the former situation and uniformly permitting it in the latter. In a real sense, decisions about the sufficiency of evidence fre quently turn on questions of law. The decision of the prosecutor to present particular evidence and ask par ticular questions is influenced by his (and the trial court’s) understanding of the legal rules governing proof of the offense, so that an appellate finding of evi dentiary insufficiency may be intimately intertwined with legal mistakes by the trial participants. For example, the prosecutor may rely for part of his proof on presumptions and inferences, the propriety of which creates legal questions. The prosecutor and trial court may misunderstand the elements of the offense that need to be proved. “Variance” between pleading and proof can be viewed as either a de ficiency in the evidence or as an error in drafting the indictment. The evidence might establish an offense other than that charged in the indictment; that, too, may be only a drafting error. The court may submit the case to the jury on a theory unsupported by the 34 9 evidence, although the proof at trial made out the offense charged under the proper theory. A court may improperly exclude relevant evidence, as a result of which the remaining evidence is insufficient. Or a court may erroneously admit evidence and the pros ecutor, in reliance on that decision, may elect not to offer other (admissible) evidence that would have established the offense. In the present case the court of appeals apparently concluded that the government’s expert witnesses should have addressed themselves directly to the ulti mate issue whether petitioner had substantial capacity to conform his conduct to the requirements of the law. But whether such opinion testimony is required—or whether, instead, jurors may infer such conclusions from the other testimony of the expert witnesses—is as much a legal as a factual question. The defect identi fied by the court of appeals therefore may have been caused by a mistake of law shared by the prosecutor and the district court rather than by any inability to prove that petitioner had committed the offense. Even when no legal problem is mingled with the factual insufficiency, significant considerations sup port recognition of judicial discretion to order a second trial. This Court explained in U nited S ta tes v. Tateo, 377 U.S. 463, 466, that “it is at least doubtful that appellate courts would be as zealous as they now are in protecting against * * * improprieties at trial * * * if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of 35 10 further prosecution.” That consideration applies to cases in which the evidence is insufficient no less than to cases in which the trial may have been beset by procedural error. When the sufficiency of the evidence is doubtful, but the appellate court is not convinced that the defendant should be discharged entirely, a remand for a second trial may be the fairest solution for all concerned. Affirmative defenses such as insanity present special problems in this regard. Sanity is not necessarily an element of the offense, and questions about mental condition may take the trial far afield from the usual questions of factual guilt. When the statutory ele ments of the offense have been established beyond question, as they have been here (petitioner has con ceded that he robbed the bank), and when the evidence addressed to the affirmative defense is strong enough to persuade a jury to convict and to persuade a dis trict court to deny a motion for a judgment of acquit tal, it is not unfair to permit a second trial if an appellate court should conclude that the evidence was defective in some respect not perceived at trial. D. The statute governing further proceedings after a reversal on appeal provides that the appellate court may direct the holding of such further proceedings as are “just” and “appropriate.” 28 U.S.C. 2106. We believe that the statute and the Double Jeopardy Clause both establish a test under which the defend ant’s interests and those of the state must be con sidered and fairly reconciled. The defendant has an 36 11 important interest in avoiding being subjected to re peated trials at which the prosecutor attempts to sup ply the evidence necessary to support a conviction. But where the defect at the first trial is based upon a mistake of law rather than upon simple factual in sufficiency, or where the prosecutor cannot reasonably be faulted for any factual insufficiency, the interest in accurate resolution of criminal charges outweighs the interest of a defendant in avoiding a second trial after conviction at the first. The ends of public justice should be the guiding criterion. Under the approach we have outlined—an approach that several courts of appeals have adopted3—there can be no second trial if the evidence at the first was insufficient and there is no good ex cuse for that insufficiency. A second trial would be appropriate only if (a) it appears that the prosecutor can supply at the second trial the evidence that was missing at the first, and (b) the prosecutor can dem onstrate that there was a good reason why the evi dence was not presented at the first trial. Under this approach second trials would be the exception, not the rule. But when these conditions are present, second trials serve the ends of public justice and are con sistent with the principles of the Double Jeopardy Clause. 3 Sec, e.g., United States v. Wiley, 517 F. 2d 1212 (C.A. D .C .); United States v. Howard, 432 F. 2d 1188, 1191 (C.A. 9) (opinion of Ely and Hufstedler, J J .) . See also United States v. Steinberg, 525 F. 2d 1126,1131-1135 (C.A. 2) (Friendly, J., concurring). See also note 26, infra. 37 12 The court of appeals remanded the present case to permit the district court to conduct an inquiry into the ability of the prosecutor to offer sufficient evi dence and into the reasons for the deficiency at the first trial, Petitioner will not be tried a second time unless that trial would be in the interest of justice under the principles of Tateo and Jorn . There is no reason to forbid the district court from making this inquiry, and the judgment of the court of appeals therefore should be affirmed. A R G U M E N T TH E DOUBLE JEOPARDY CLAUSE DOES NOT INVARIABLY PROHIBIT THE HOLDING OF A SECOND TRIAL IF THE COURT OF APPEALS CONCLUDES THAT THE INTERESTS OF JUSTICE REQUIRE SUCH A TRIAL AFTER A REVERSAL FOR INSUFFICENT EVIDENCE A . A SECOND T R IA L O R D IN A R ILY M A Y BE H E L D A FT E R A C O N V IC T IO N IS REVERSED O N A PP E A L “ At least since 1896, when U nited S ta tes v. Ball, 163 U.S. 662, was decided, it has been settled that [the Double Jeopardy Clause] imposes no limitations * * * upon the power to re try a defendant who has succeeded in getting his first conviction set aside.’’ N o rth Carolina v. Pearce, 395 U.S. 711, 719-720; emphasis in original. This principle is as old as the Double Jeopardy Clause itself.4 I t is “ elementary in * A statement of the rule appears in the congressional debates on the amendment. See 1 Annals of Congress 753 (1789); United States v. Wilson, 420 U.S. 332,340-341. 38 13 our law” (.Form an v. U nited S ta tes , 361 U.S. 416, 425) and a “ well-established part of our constitu tional jurisprudence” (U nited S ta tes v. Tateo, 377 U.S. 463, 465). Perhaps no other principle of double jeopardy law has been stated so often.5 Its validity has never been seriously questioned. Several rationales have been advanced for this rule. Some cases explained that a defendant who appeals from a conviction “waives” any double jeopardy ob jection to a second trial on the offense of which he was convicted. See, e.g., Trono v. U nited S ta tes, 199 U.S. 521, 533; S a p ir v. U nited S ta tes, 348 U.S. 373, 374 (Douglas, J., concurring). Other cases state that an appeal “continues” the jeopardy of the first trial. See, e.g., J e ffe rs v. U nited S ta tes, No. 75-1805, de cided June 16, 1977, plurality slip op. 14; P rice v. Georgia, 398 U.S. 323, 326. Still others conclude that the propriety of a second trial “rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” N o rth Carolina v. Pearce, supra, 395 U.S. at 721. 5 See, e.g., Brown v. Ohio, No. 75-6933, decided June 16, 1977, slip op. 4 n. 5; Jeffers v. United States, No. 75-1805, decided June 16, 1977, plurality slip op. 14; Abney v. United States, No. 75-6521, decided June 9, 1977, slip op. 14; Ludwig v. Massachu setts, 427 U.S. 618, 630-632; United States v. Dinits, 424 U.S. 600, 610 n. 13; Breed v. Jones, 421 U.S. 519, 534; Price v. Georgia, 398 U.S. 323, 326, 329 n. 4; United States v. Ewell, 383 U.S. 116, 121- 125 j Green v. United States, 355 U.S. 184, 189; Stroud v. United States, 251 U.S. 15, 16-18; Murphy v. Massachusetts 177 U.S. 155, 158-159. 39 14 All of these explanations are open to criticism,6 and although we do not entirely discount them, a “more satisfactory explanation” must be sought elsewhere. Breed v. Jones, 421 U.S. 519, 534; U nited S ta tes v. W ilson , 420 U.S. 332, 344 n. 11. The best explanation “lies in [an] analysis of the respective interests in volved” (B reed v. Jones, supra, 421 U.S. 534); the practical justification for generally allowing a second trial after the first conviction has been reversed is simply that it is fairer to everyone involved. As the Court explained in U nited S ta tes v. Tateo, supra, 377 U.S. at 466: [0 ]f greater importance than the conceptual abstractions employed to explain the B all prin ciple are the implications of that principle for the sound administration of justice. Correspond ing to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted im munity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they 6 The waiver analysis was largely rejected by Green v. United States, 355 U.S. 184, 191-198. Cf. United States v. Dinitz, supra (the propriety of a second trial after a defendant moves for a mis trial does not depend on “waiver”). The “continuing jeopardy” analysis has been rejected in other contexts. See United States v. Wilson, supra, 420 U.S. at 351-353. Finally, the “clean slate” analysis may be only a restatement of the waiver argument. 40 15 now are in protecting against the effects of im proprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interests. The question of retrial after reversal usually arises when a defendant whose factual guilt has been estab lished by sufficient evidence asserts that, for some rea son, the factfinding process was unfair or unreliable or that a pretrial error undermined his conviction. In these cases it is entirely reasonable to remand the case to give the defendant what he was denied before—a proeedurally adequate trial. A second trial following a reversal of a conviction gives the accused what he asserted he was denied, and it does not offer the prose cutor a chance to obtain a more favorable verdict from a second factfinder after failing with the first. “The determination to allow reprosecution in these circum stances reflects the judgment that the defendant’s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful gov ernmental or judicial error.” U nited S ta tes v. Jorn , 400 U.S. 470, 484 (plurality opinion).7 7 A second trial after conviction and reversal does not jeopardize the defendant’s “valued right to have his trial completed by a par ticular tribunal” (Wade v. Hunter, 336 U.S. 684, 689) or deprive a defendant of his “option to go to the jury and, perhaps, end the 41 16 Petitioner contends, however, that the justifications for holding a second trial are inadequate when a defendant contends that the evidence was insufficient to support a conviction. When a motion for a judg ment of acquittal is erroneously denied, petitioner argues, the defendant is deprived of his chance to end the dispute then and there with an acquittal. More over, at a second trial the prosecutor will have “an other, more favorable opportunity to convict the ac cused” ( Gori v. U nited S ta tes , 367 U.S. 364, 369) and will be able to try to “do better a second time” (B rock v. N o rth Carolina, 344 U.S. 424, 429 (Frankfurter, J., concurring)). Petitioner contends that these were exactly the dangers against which the Double Jeop ardy Clause was designed to protect, and that when a court of appeals concludes that the evidence was insufficient to support a conviction, it has no choice but to enter a final judgment of acquittal. These arguments for distinguishing evidentiary in sufficiency from legal errors are strong ones. For the reasons that follow, however, we do not believe that they justify the creation of a rigid rule invariably prohibiting second trials after reversals for insuf ficiency of the evidence. dispute then and there with an acquittal” (United States v. Jom , supra, 400 U.S. at 484). This case went to the jury, which found petitioner guilty. The defendant in such cases has not been deprived of any options; there is no need to speculate about what the jury at the first trial would have done. The special problems that arise when a trial is terminated prior to verdict therefore do not pertain to the present case. 42 17 B. T H IS COURT H A S A LLOW ED SECOND TR IA LS A FT E R REVERSALS FOR IN S U F F IC IE N C Y OF T H E EV ID EN CE Before the creation of the courts of appeals, cer tain criminal convictions could be appealed directly to this Court. I t was this Court’s practice, after con cluding that the evidence of guilt was insufficient, to remand the case for a second trial. See, e.g., W iborg v. U nited S ta tes, 163 U.S. 632; C lya tt v. U nited S ta tes, 197 U.S. 207. This Court held in B rya n v. U nited S ta tes, 338 U.S. 552, that this practice comported with the Double Jeopardy Clause and was authorized by 28 U.S.C. 2106, which gives appellate courts the power to direct on remand the holding of any further proceedings that may be “just” and “appropriate.” In B rya n a convic tion had been reversed because the evidence was insuf ficient. This Court concluded that another trial should be held for several reasons: because the evidentiary question was very close, because the missing evidence could be supplied at a second trial, and because a “new trial was one of the remedies which petitioner sought” (338 U.S. at 560). I t then rejected the argument that such a trial would be constitutionally impermissible, pointing out that the defendant “sought and obtained the reversal of his conviction” {ib id .), a circumstance that always had been deemed to remove any double jeo pardy barrier to a second trial. 43 18 B ry a n was a considered holding.8 It has been reaf firmed several times. In Y a tes v. U nited S ta tes, 354 U.S. 298, 328, the Court, although concluding that it was just to acquit certain defendants against whom the evidence was insufficient, went on to point out that “we would no doubt he justified in refusing to order acquit tal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked * * * for a new trial as well as for acquittal.” In S a p ir v. U nited S ta tes, supra, the Court ordered a de fendant acquitted because of evidentiary insufficiency, but Mr. Justice Douglas noted in concurrence that the Double Jeopardy Clause would not invariably require such a disposition.9 In F orm an v. U nited S ta tes, supra, the Court held that a new trial was appropriate even though no evi 8 Petitioner suggests that the double jeopardy issue received only “cursory” attention (Br. 8) because it was discussed in a single paragraph. Yet the extensive briefs of the parties had ad dressed the double jeopardy issue (see the briefs in No. 178, Octo ber Term, 1949: Pet, Br. 16-22, Resp. Br. 7-15, Pet. Reply Br. 2-4), and Mr. Justice Black addressed the question in a concur ring opinion. 9 The brief per curiam opinion in Sapir does not state the reason for requiring petitioner to be acquitted. The petition for certiorari in that case (Pet. No. 534, October Term, 1954, p. 9) conceded that under Bryan the Double Jeopardy Clause did not always forbid a second trial after a reversal for insufficient evidence. Peti tioner argued, however, that the court of appeals had considered evidence outside the record in deciding that a second trial should be held (Pet. 7), that the government’s request for a new trial was untimely (Pet. 7-9), that petitioner had not asked for a new trial (Pet. 9-10), and that a new trial would be unjust because the prosecutor had a full opportunity to present evidence at the first trial (Pet. 10-12). 44 19 dence at all supported the theory on which the case had been submitted to the jury. The Court pointed out that there was ample evidence to convict Forman un der a correct theory, that a “new trial * * * was one of petitioner’s remedies” (361 U.S. at 425), and that even though Forman had requested an acquittal “the Court of Appeals has full power to go beyond the par ticular relief sought” {ib id .). The Court has continued to cite B ry a n favorably. See N orth Carolina v. Pearce, supra, 395 U.S. at 720, 721 n. 18 (” [w]e think those decisions are entirely-sound, and we decline to depart from the concept they reflect”) ; U nited S ta tes v. Jorn , 400 U.S. at 492-493 n. 3 (Stewart, J., dissenting). B ry a n has not, however, escaped criticism. Sev eral courts have limited B ry a n to cases in which the defendant filed a motion for a new trial.10 Other courts 10 See, e.g., United States v. Barker, 558 F. 2d 899 (C.A. 8); Greene v. Massey, 546 F. 2d 51 (C.A. 5), certiorari granted, June 20,1977 (No. 76-6617) ; United States v. Robinson, 545 F. 2d 301, 305 n. 5 (C.A. 2). See also 2 Wright, Federal Practice and Procedure:Criminal § 740 (1969). Although Forman suggested that Sapir had established this distinction, that statement may have been based on a misreading of the issues presented in Sapir. See note 9, supra. In any event, we agree with Mr. Justice Harlan, concurring in Forman (361 U.S. at 428), that “the right of an appellate court to order a new trial does not turn on the relief requested by the defendant, and the Sapir case does not suggest such a distinction.” The motion for a judgment of acquittal and the motion for a new trial serve different functions; a defendant who seeks an acquittal argues that the evidence was absolutely insufficient to convict him, whereas a defendant may ask for a new trial because of trial error or because he seeks to persuade the district court to grant a new 45 20 have adopted the approach of Mr. Justice Black in B ry a n by concluding that a second trial could be held only if there are equitable reasons for doing so.11 Some courts and commentators have called for the overrul ing of B rya n .12 These views are based on the arguments we have outlined at pages 15-16, supra, and the essential belief that the prosecution, having failed to introduce suf trial in the interests of justice even though the evidence is margin ally sufficient. Under 28 U.S.C. 2106 an appellate court may grant whatever relief is just and appropriate, and “the Court of Appeals has full power to go beyond the particular relief sought” (Forman, supra, 361 U.S. at 425). The court should be empowered to grant an acquittal even though the defendant asked only for a new trial, and it should be empowered to grant a new trial even if the defendant asked only for an acquittal. A defendant entitled to an acquittal should not be denied that relief just because he also requests a new trial in the event that an appellate court should conclude that an acquittal would be unjustified. The idea that the appellate court is confined to the relief the defendant requested could be supported only on a rigid view of “waiver” of double jeopardy interests that was rejected in United States v. Dinits, supra. See also United States v. Wiley, 517 F. 2d 1212, 1217 n. 24 (C.A. D.C.). 11 See, e.g., United States v. Wiley, supra, 517 F. 2d at 1219-1221 (new trials should be allowed when circumstances beyond the prosecutor’s control, including legal error at trial, prevented the introduction of sufficient evidence); United States v. Howard, 432 F. 2d 1188, 1191 (C.A. 9) (opinion of Ely and Hufstedler, J J .) ; United States v. Steinberg, 525 F. 2d 1126, 1134-1135 (C.A. 2) (Friendly, J., concurring) 12 See, e.g., Sumpter v. DeGroote, 552 F. 2d 1206, 1209-1213 (C.A. 7). See also Thompson, Reversals for Insufficient Evidence: The Emerging Doctrine of Appellate Acquitted, 8 Ind. L. Rev. 497 (1975) ; Comment, Double Jeopardy: A New Trial After Appel late Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 365 (1964). 46 21 ficient evidence at the first trial, should not be al lowed a second opportunity to convict. We, too, be lieve that these arguments suggest that second trials should be allowed only with caution after a conviction has been reversed for insufficient evidence; we do not, however, believe that a distinction between evidenti ary and procedural reversals can or should be drawn that would make second trials uniformly forbidden in the former case and uniformly permitted in the latter. C. T H E R E IS N O B R IG H T L IN E B E T W E E N IN S U F F IC IE N C Y OF EV ID EN CE A N D LEGA L ERROR A T T R IA L The legal standard that the court of appeals applies in passing on evidentiary arguments is a source of difficult questions. “ [T]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. U nited S ta tes, 315 U.S. 60, 80. What evidence is “substantial” is difficult to state in the abstract, and the sufficiency of the evidence depends upon the legal definition of the offense. The decision of a court of appeals to reverse a conviction because of “ insufficient evidence” rarely involves only a con clusion that proof of an essential fact is missing. In the pages that follow, we discuss some of the reasons that make it impossible to draw any inflexible line between legal and evidentiary problems. 1. Legal and factual issues may be inextricably intertwined The prosecutor’s decision to introduce particular evidence at trial is guided by his understanding of 47 22 legal rules. There are many eases in which the prose cutor, the defendant, and the court may have some uncertainty about what the evidence must show in order to be sufficient. For example, federal weapons offenses require proof of an interstate nexus. But it is not always easy to predict which offenses require what proof of interstate travel of weapons or their owners. Compare U nited S ta tes v. Bass, 404 U.S. 336, with Scarborough v. U nited S ta tes, No. 75-1344, de cided June 6, 1977. The failure of a prosecutor to introduce particular proof of a sufficient interstate nexus may reflect noth ing other than a legal error—shared by the district court—about what the offense involves. The proof sub mitted to the jury may be sufficient to establish every element of the offense defined by the court’s instruc tions, yet an appellate court could hold that essential evidence was missing. Is this a legal error in the charge to the jury, or is it a factual deficiency amount ing to insufficient evidence"? Other problems arise when Congress or the common law provides that one fact may be inferred from an other. Inferences are common in criminal trials; intent usually is inferred from objective facts, knowledge is inferred from circumstances, and other elements of the crime also must be proved indirectly. Yet all inferences present problems not only of constitution ality (see B arnes v. U nited S ta tes, 412 U.S. 837) but also of the adequacy of the proof. In L ea ry v. U nited S ta tes, 395 U.S. 6, the Court held that a particular 48 23 statutory inference was unconstitutional; with, the in ference removed, the evidence at the trial was insuffi cient. But relying on the inference in the first place was entirely a legal error, and a second trial was ap propriate if the evidence could he supplied in a proper way.13 Take another example. An indictment charges a single conspiracy, and the defendant contends that the evidence at trial showed multiple conspiracies. Is this variance, if established, a “failure of proof,” or is it a legal error in either (a) drafting the indictment, or (b) introducing too m uch evidence? See U nited S ta tes v. B erto lo tti, 529 F.2d 149, 154, 160 (C.A. 2). Suppose, for any number of reasons, that the court of appeals is convinced that the defendant committed a crime, but not the one charged in the indictment; is such a case a “failure of proof” or an error in deciding what legal theory to put forth in the indictment ? In many cases the prosecutor introduces proof that is more than sufficient to meet the Glasser standard, 13 Similarly, suppose there is a question whether the factfinder may “notice” a particular fact. There may be a question whether the name of a national bank is enough to prove that it is in fact a national bank for purposes of 18 U.S.C. 2113, or whether a jury may notice that lines of the American Telephone and Telegraph Co. cross state borders. In a state prosecution the question arose whether the jury could notice that the defendant, who was present in court, was female (see Sumpter v. DeGroote, supra). Often the prosecutor fails to offer proof of such things only because he be lieves (perhaps incorrectly) that the factfinder may take notice of the obvious. I t is possible to call these kinds of deficiency “fail ures of proof,” but it would be just as accurate to call them “mistakes of law” shared by the prosecutor and the court. 49 24 but the court of appeals later concludes that some por tion of that proof should have been excluded—for ex ample, because it was hearsay. The prosecutor may have relied on the district court’s legal error in admit ting the evidence and, because of that reliance, failed to offer other, admissible evidence that would have been cumulative. In cases of this sort sufficient evi dence was admitted in fact, and a second trial should be permitted so that admissible evidence may be sub stituted for the inadmissible evidence. 2. Even genuine deficiencies in the evidence may he attributable to the defendant or to legal error The eases we have discussed above are ones in which the evidence submitted to the jury is sufficient to al low the jury to find all of the elements of the offense defined in the court’s charge, yet an appellate court later concludes that it was “really” insufficient under a correct legal standard. We believe that all of these cases should be treated, under the standard of B all and Tateo, just like any other legal error. A second trial should be permitted if the factual defect can be corrected. The argument against holding a second trial is strongest when the evidence at trial is insufficient even under the view of the law taken by the trial court. Here, too, however, it is not always simple to isolate factual insufficiency from legal error. In some cases the prosecutor introduces more than enough evidence to establish the commission of an of 50 25 fense, but the defendant induces the court to give a charge to the jury erroneously requiring the jury to find facts that have not been proved at trial. For ex ample, in F orm an v. U nited S ta tes , supra, the prose cutor introduced evidence that established that For man and Seijas conspired to evade income taxes. The defendants persuaded the district court that the pro secution was barred by the statute of limitations unless they had entered into a second conspiracy to conceal the first, and the court accordingly instructed the jury that it could convict only if it found a “concealment” conspiracy. That amounted to the direction of a verdict of acquittal, since there was no evidence that there had been such a conspiracy. The jury convicted the defendants nevertheless. The evidence at the first trial was palpably insufficient to prove the offense that the district court defined for the jury, and the district court (if it believed its own erroneous legal theory) should have entered judg ments of acquittal. This Court had no difficulty in concluding, however, that a new trial was just and appropriate under 28 U.S.C. 2106, and consistent with the Double Jeopardy Clause.14 14 As Mr. Justice Whittaker explained, concurring, 361 U.S. at 429, the defendant, “having asked [for] and obtained an erroneous but far more favorable charge than he was entitled to, certainly invited the error, benefited by it, and surely may not be heard to attack it as prejudicial to him” and then assert it as a reason why he may not be tried a second time. 51 26 F orm an was an extreme case.15 Other, more common, procedural problems may lead to a failure of proof. A ruling by the trial court may erroneously preclude the introduction of essential probative evidence. The court may, for example, improperly suppress evidence on Fourth Amendment grounds or erroneously conclude that a particular statement does not fall within an ex ception to the hearsay rule. If the court then grants a mid-trial judgment of acquittal, the Double Jeopardy Clause would bar a second trial.16 But if the case goes to the jury, and the jury convicts the defendant, the defendant should not thereafter be able to plead the legal error as a reason why he may not be retried. The defendant is not entitled to a “windfall acquittal,” be cause he “acquire[s] no vested right [to] that error.” 15 See also United States v. Ciofii, 487 F. 2d 492 (C.A. 2), certio rari denied sub nom. Giuzio v. United States, 416 U.S. 995, in which the court withdrew from the jury the authority to convict on a legal theory supported by the evidence and submitted the case, instead, on a theory not supported by the evidence. The court of appeals found (487 F. 2d at 501) “no tenable distinction be tween a case like this where defendants have procured a reversal because the judge submitted the indictment to the jury on a wrong theory and one where they procured a reversal because the judge submitted a defective indictment, as in the classic case of United States v. Ball, 163 U.S. 662, 672 * * *.” Mr. Justice Brennan, dis senting from the denial of certiorari, recognized (416 U.S. at 997) that it was proper to remand for a second trial “although the Government’s evidence * * * may have been insufficient * * (He argued, however, that there was an implied acquittal on the charge withdrawn from the jury.) 16 See United States v. Martin Linen Supply Go., No. 76-120, decided April 4,1977; United States v. Fay, 553 F. 2d 1247 (C.A. 10) (erroneous grant of suppression motion in mid-trial, fol lowed by the entry of a judgment of acquittal). 52 27 U nited S ta tes v. H ow ard, 432 F. 2d 1188, 1190 (C.A. 9) (opinion of Madden, J .).17 In many cases the deficiency in the prosecution’s case may be attributable to the defendant. See, e.g., U nited S ta tes v. S m ith , 437 F. 2d 538 (C.A. 6), in which the prosecution was unable to overcome an in sanity defense because the defense had given inade quate notice and the defendant refused to submit to a psychiatric examination. Although the court of ap peals reversed the conviction for want of sufficient evidence of sanity, it was both just and constitu tionally permissible to remand the case for a second trial at which the prosecution could supply the evi dence that was missing at the first trial only because of the defendant’s tactics.18 17 In Howard the district court, at the urging of the defendant, denied the prosecution the benefit of a statutory presumption, but the jury nevertheless convicted. The court of appeals remanded the case for a second trial despite the fact that the evidence was insufficient without the assistance of the presumption. As Judges Ely and Hufstedler explained in a separate opinion (432 F. 2d at 1191), “the prosecution, through no fault of its own, had been deprived of an advantage to which it was entitled * * *. In these circumstances, its case has not been fully developed, and it cannot be faulted for the deficiency of proof which requires reversal.” 18 See United States v. Wiley, supra, 517 F. 2d at 1221, in which the court of appeals, although critical of Bryan, identified situa tions in which a second trial should be allowed despite insufficient evidence at the first trial: “the Government may [establish the propriety of a second trial] by pointing to unusual circumstances which denied it a fair chance to prove its case. * * * Retrials would also appear permissible, for example, where the Govern ment was prevented from introducing sufficient evidence by an erroneous ruling of the trial judge, improperly excluding or sup pressing Government evidence or denying a reasonable motion to reopen its case or to obtain a brief continuance to supply addi tional evidence.” 53 28 In all of the eases we have discussed above, a legal error by the court, by the prosecutor, by the defense, or by some combination of them produced a defect in the evidence. Petitioner argues that these and other problems may be put to one side, because in the pres ent case no legal error was responsible for the de ficiency in the evidence. This is not necessarily an ac curate characterization of this case. The court of appeals reversed petitioner’s conviction principally because the expert witnesses for the prosecution did not give their opinions on the ultimate issue of peti tioner’s sanity (see A. 157). Whether expert witnesses are required to testify on the ultimate issue is entirely a legal question, and the defect in the evidence there fore may be related to a legal assumption, shared by the prosecutor and by the district court, that such evidence is unnecessary.19 19 Fed. K. Evid. 704 provides that expert testimony is not “ob jectionable'’ because it “embraces an ultimate issue to be decided by the trier of fact.” But this is a new rule in federal practice; older cases forbade such testimony. See McCormick, Handbook of the Law of Evidence § 12 (Cleary ed. 1972). The jury usually is al lowed to infer from the expert’s background testimony whether the defendant’s mental disease significantly diminished his capac ity to obey the law, and we have not discovered any other case hold ing or implying that the expert witnesses must address this ques tion directly. The court’s holding in this regard, to the extent it makes opinion testimony on the ultimate issue indispensible, there fore is a departure from precedent. Moreover, the court of appeals’ holding in this regard appears to take a different approach to insanity issues than does United States v. Dube, 520 F. 2d 250 (C.A. 1), which held that the evi dence of a defendant’s sanity may be sufficient even though the prosecution presents no expert witnesses; the Dube court con- 54 29 3. An inflexible rule barring retrials would deter appellate courts from giving defendants the benefit of the doubt in close cases We do not believe that even relatively uncluttered questions of fact can be analyzed in a way that would isolate certain categories of cases in which retrial is never permitted. This Court explained in U nited S ta tes v. Tateo, supra, 377 U.S. at 466, that “ it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at * * * trial * * * if they knew that reversal of a conviction would put the ac cused irrevocably beyond the reach of further prose cution.” That observation applies to cases in which the evidence may be insufficient no less than to cases in which the trial may have been infected by prose cutorial error. There is no simple device for separating sufficient evidence from insufficient evidence. There are many eluded that the jury may choose to discount the analysis of the defendant’s experts, and that information supplied by lay wit nesses may be ample to allow the jury to conclude that the defend ant was sane at the time of the crime. Dube thus holds that in some cases neither expert witnesses nor testimony on the ultimate issues is necessary. I f the court of appeals in the present case had followed the analysis of Dube, it probably would have affirmed petitioner’s con viction. This illustrates, we believe, that the court’s ^evidentiary insufficiency” holding had strong procedural overtones. Any deficiency in the evidence at trial may have been caused by the prosecutor’s beliefs about the types of proof that were required. (Although we have not presented this apparent conflict among the courts of appeals as a question for resolution by this Court, wye do not thereby concede that the court of appeals resolved the issue correctly in the present case.) 55 30 cases in which the district judge and a unanimous jury are convinced of the defendant’s guilt, yet the court of appeals is skeptical. I t is not unusual for a -court of appeals to conclude that the evidence of guilt is sufficient “ although only by a hair’s breadth” ( U nited S ta tes v. L e fk o w itz , 284 P. 2d 310, 315 (C.A. 2), or that it is almost (but not quite) sufficient, or that it is technically deficient in an easily remediable way (e.Q., Cook v. U nited S ta tes, 362 P. 2d o48, 549 (C.A. 9). When the evidence is on the borderline between sufficiency and insufficiency, a court might hesitate to declare the evidence deficient if it knew that such a declaration must bring the prosecution to an end. As a practical matter, it may be essential to allow appellate courts the option of remanding for a second trial in cases where the sufficiency of the evidence is doubtful. When the reviewing court perceives the issue of guilt to be close, a rule forbidding it to remand for another trial would provide substantial incentive to resolve difficult issues in favor of af firmance, lest the guilty go free. The rule allowing retrials permits appellate courts to resolve uncer tainties in favor of the defendant without committing themselves to saying the final word on the issue of guilt or innocence. A remand for a second trial is, in at least some cases, the remedy most consistent with an honest appraisal of the state of the evidence: neither strong 56 31 enough to permit the defendant to be convicted, nor weak enough to say with assurance that the evidence does not satisfy the Glasser standard. When these difficult cases arise, a remand for a second trial may be by far the fairest solution for all concerned.20 This may be such a case. The trial judge and the jury were persuaded of petitioner’s sanity. Two expert witnesses testified for the prosecution that petitioner knew what he was doing and had substantial control over his actions, but they did not explicitly state that he could conform his conduct to the requirements of the law on the day in question. The court of appeals observed that at least one lay witness gave testimony 20 We do not imply that an appellate court has an essentially unfettered power (similar to that granted to the district courts by Fed. E. Crim. P. 33) to grant new trials in the interests of justice despite the sufficiency of the evidence. Glasser provides the proper standard for appellate review. But wherever the line is drawn be tween sufficient and insufficient evidence, there will be cases very near it on either side, and it is in these difficult cases that the option of ordering a new trial is necesary to facilitate fair resolution. Moreover, some state appellate courts possess the power to award new trials in the interest of justice despite the sufficiency of the evidence. Greene v. Massey, supra, may involve the exercise of that power by a state court (see Sosa v. State, 215 So. 2d 736, 737 Fla. Sup. Ct.). In these cases a defendant probably should have the right to insist upon a resolution of the sufficiency question if he would prefer to let the conviction (and the known sentence) stand rather than to subject himself to a second tria l; a motion for a new trial reveals that the defendant does not insist upon a final dispo sition. But once a defendant has opened up the possibility of a re mand for a new trial “in the interests of justice,” he should not be able to invoke a double jeopardy bar to the trial he requested. See also note 10, supyra. 57 32 establishing that petitioner behaved normally for ex tended periods, but that this testimony was under mined by an incident related on cross-examination (A. 157). In these circumstances, the court concluded, the evidence had not “effectively” (ib id .) overcome the p rim a facie showing of insanity. The court of appeals’ discussion strongly suggests that it found this to be a difficult case, in which it weighed not only the particular testimony but also its “effectiveness.” Cases of this sort are excellent ex amples of cases in which a second trial is a solution preferable to either affirmance of the conviction or outright acquittal. A- Evidence relating to affirming defenses presents problems unlike those that arise when the proof does not establish one of the elements of the offense Part of the rationale for allowing a second trial after a conviction has been reversed is that “the Double Jeopardy Clause does not guarantee a defend ant that the Government will be prepared, in all cir cumstances, to vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense.” U nited S ta tes v. Jorn , supra, 400 TI.S. at 483-484 (plurality opinion). “ Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial.” U nited S ta tes v. Tateo, supra, 377 U.S. at 466. Many suffieiency-of-the-evidence problems arise when the prosecutor neglects or is unable to prove an 58 33 element of the offense. In such cases the appellate court is not confronted with a defendant “whose guilt is clear.” The failure to prove an element of the of fense beyond a reasonable doubt is a constitutional defect (see I n re W in sh ip , 397 U.S. 358), and when the prosecutor has simply neglected (or been unable) to prove an essential element of the offense, the de fendant has a strong argument for an absolute acquit tal whether or not the jury has convicted him. But the problem is more difficult where, as here, the prosecutor established all of the elements of the offense beyond a reasonable doubt, and the question on appeal is whether the prosecutor also adequately overcame an affirmative defense. Petitioner has conceded that he robbed the b an k (A. 158). This case therefore involves a defendant “whose guilt is clear” on the statutory elements of the offense. Since the burdens of proving or overcoming affirmative defenses are constitutionally distinct from the prosecutor’s burden to prove the elements of the offense,21 only prudential questions are involved in con sidering the sufficiency of evidence to overcome an af firmative defense. This Court has held that in federal cases the prosecutor must show beyond a reasonable doubt that the defendant was sane at the time of the offense (D avis v. U nited S ta tes, 160 U.S. 4 6 9 ) ; in that sense, sanity is an element of the offense. But the Constitution would be satisfied if Congress put the 21 See Patterson v. New York, No. 75-1861, decided June 17. 1977; Speiser v. Randall, 357 U.S. 513, 523. 59 34 burden on defendants to establish insanity (Leland v. Oregon, 343 TT.S. 790; as a constitutional matter, then, sanity and factual guilt are distinct. Affirmative defenses often take a case well afield from the question whether the defendant committed the offense charged. In the present case, for example, the psychiatrists explored petitioner’s childhood de velopment and his ambivalent feelings toward his parents and siblings (e.g., A. 64—69, 77-82, 88). The prosecutor, who must be fully prepared to prove the elements of the offense charged in the indictment, will not always be prepared to overcome whatever ques tions may be raised by affirmative defenses. When the elements of the offense have been estab lished beyond question—and when the evidence con cerning the affirmative defense is sufficiently strong to persuade a jury to convict and to persuade the dis trict court to deny a motion for a judgment of acquit tal—it is not unfair to permit a second trial to be held if an appellate court should later conclude that the evidence was weaker than the district court thought it was. Cases involving failure of proof only on an af firmative defense may be paradigms of cases in which society has an important interest in convicting those who are in fact guilty. Moreover, when the sufficiency of the proof is ques tionable only with respect to an affirmative defense such as insanity, it is especially important in difficult cases that courts have the “safety valve” of remand ing for a second trial rather than resolving uncertain 60 / ties in favor of either acquittal or affirmance. That courts generally regard such a disposition as “just” and “appropriate” reflects both (1) the fact that there is little doubt that the defendant committed the acts constituting the crime and (2) the fact that questions of mental competency present such a “Serbonian Bog” 22 that an appellate court cannot be certain that its own evaluation of the defendant’s state of mind rests on footing more sure than the jury’s evaluation.23 The resolution of close cases involving imponderables like sanity would not be facilitated by an inflexible rule denying appellate courts the middle ground of ordering a second trial. The difference between affirmative defenses and other factual questions is illustrated by the fact that some federal courts and many state courts hold bifurcated trials. I f a bifurcated trial had been held in the present case, the jury would have found peti tioner guilty of the offense charged, and that verdict would stand unimpeached. The jury then would have rejected petitioner’s insanity defense; the court of 22 United States v. Bass, 490 F. 2d 846, 851 (C.A. 5). 23 See, e.g., Amador Beltran v. United States, 302 F. 2d 48 (C.A. 1); United States v. Wilson, 399 F. 2d 459,464 (C.A. 4) (Sobeloff, J., dissenting) ; United States v. Bass, supra; United States v. Paries, 460 F. 2d 736 (C.A. 5) ; Watkins v. United States, 409 F. 2d 1382 (C.A. 5), certiorari denied, 396 U.S. 921; United States v. Dunn, 299 F. 2d 548 (C.A. 6 ); United States v. Barfield, 405 F. 2d 1209 (C.A. 6) ; United States v. Smith, 437 F. 2d 538 (C.A. 6); United States v. McGraw, 515 F. 2d 758 (C.A. 9); Julian v. United States, 391 F. 2d 279 (C.A. 9); Rucker v. United States, 288 F. 2d 146 (C.A. D.C.) ; Hopkins v. United States, 275 F. 2d 155 (C.A. D .C .); Douglas v. United States, 239 F. 2d 52 (C.A. D.C.). 35 61 38 appeals would have reversed only that discrete por tion of the jury’s findings. If the initial bifurcation would not have violated the Double Jeopardy Clause, there is no convincing reason why further proceedings on the insanity question alone would do so, since the finding of factual guilt would endure.24 This Court has upheld separate and limited retrials on the issue of disposition (see B ra d y v. M aryland, 373 U.S. 83, 88-91), and we believe that further proceedings seek ing to achieve the correct resolution of issues raised by an affirmative defense are not necessarily forbid den by the Double Jeopardy Clause.25 24 See United States v. Alvarez, 519 F. 2d 1036, 1049 (C.A. 3), another insanity case, in which the court of appeals explained that “the double jeopardy clause of the fifth amendment does not bar a retrial after a reversal on appeal so long as there was suf ficient evidence persented in the first trial to establish a prima facte case (footnote omitted). Alvarez permitted a second trial ofter reversal because of defects in the proof of sanity during the second portion of a bifurcated trial. The court concluded, in the exercise of its powers under 28 U.S.C. 2106, that the second trial should involve both the elements of the offense and the issue of sanity, a conclusion that appears to conflict with the practice in the District of Columbia, where a retrial would be limited to the sanity issues. Compare United States v. Wright, o il F. 2d 1311 (C.A. D.C.), with Whalem v. United States, 346 F. 2d 812 (C.A. D.C.). I t is unnecessary in the present case to consider the issues that would be presented, at the second trial of petitioner, however, in light of his concession that he robbed the bank and the fact that the court of appeals did not specify whether the retrial, if held, should be limited to the isue of sanity. I t apparently left that ques tion to be addressed in the first instance by the district court. 25 Cf. McGautha v. California, 402 U.S. 183, 208-220, which 'holds that the Due Process Clause neither requires nor prohibits bifurcated penalty trials. 62 37 D . A P P E L L A T E COURTS S H O U LD BE P E R M IT T E D TO R EQ U IR E OR ALLOW SECOND T R IA LS W H E N T H A T COURSE IS J U S T A N D REA SON A BLE We have discussed the reasons why it is difficult, if not impossible, neatly to eategorize the many reasons that may require the reversal of a conviction. Conse quently, there is no simple test that would separate cases in which a retrial should be permitted from one in. which it should not. We agree with petitioner that if the prosecutor, after a full and fair opportunity to do so, fails to introduce evidence to make out one or more elements of the offense, that should be the end of the case. If the jury nevertheless convicts, the court of appeals should reverse and remand for the entry of a judgment of acquittal. But cases are not always that simple. When legal and factual problems are intertwined, or when the evi dence of guilt is neither obviously sufficient nor obvi ously deficient, or when legal error prevents the prosecutor from having a full oportunity to present evidence, or when the evidentiary problem concerns only an affirmative defense, it is essential that the courts have the discretion to take a middle ground between acquittal and affirmance. The appellate courts have exercised this discretion with restraint, concluding that such trials are just and appropriate under 28 U.S.C. 2106 only when one or more of these circumstances occurs. See, e.g., U nited S ta tes v. W iley , 517 P. 2d 1212 (C.A. D.C.) ; U nited S ta tes v. H ow ard, 432 F. 2d 1188, 1191 (C.A. 9) 63 38 (opinion of Ely and Hufstedler, JJ .). We believe that these cases correctly balance the competing interests of the defendant and the prosecution in concluding that no inflexible rule either forbidding or allowing second trials should be established. A defendant’s le gitimate double jeopardy interests, as well as his in terests in fair treatment, are fully protected by a rule prohibiting retrial when the prosecution inexcusably fails to prove one of the elements of a p rim a facie case and permitting retrial in other situations. This is the aproach that has evolved in the courts of appeals in recent years, and we believe that it is sound.26 The disposition of petitioner’s case by the court of appeals here is consistent with this approach. The court did not mechanically remand for a new trial; it remanded the case, instead, to permit the prosecutor to outline for the district court what evidence he could offer at a second trial. Even if the prosecutor offers sufficient evidence of sanity, the district court need not allow a second trial if the prosecution had a full 26 In addition to the cases cited in note 11, supra, see United States v. Smith, 437 F. 2d 538, 542 (C.A. 6 ) ; Dotson v. United States, 440 F. 2d 1224 (C.A. 10); United States v. Snider, 502 F. 2d 645, 656 (C.A. 4 ); United States v. Koonee, 485 F. 2d 374 (C.A. 8). Although these courts have not all formulated the principle in the same way we have expressed it here, we believe that we have distilled the essence of their approach. (To the extent these and other courts find significance in the presence or absence of a motion by the defendant for a new trial, we disagree with their approach for the reasons stated in note 10, supra.) 64 39 and fair opportunity to develop its case at the first trial (A. 158). In other words, the court of appeals made the propriety of a second trial depend upon a careful balancing of the equities. The terms of the remand are just and appropriate in this ease. See also B rya n v. U nited S ta tes, supra, 338 U.S. at 560 (Black, J., concurring). If the evidence at the first trial was defective only because of an unexplained prosecutorial lapse or because suf ficient evidence was unavailable, this case will come to an end without a second trial. If the deficiency had some other cause, there is no compelling reason why petitioner should not be retried.27 2[ Tlie court of appeals did not identify with particularity the deficiencies in the evidence at petitioner’s trial (see pages 28, 31-32 and note 19, supra), and so it is not possible to predict with confi dence whether the prosecutor will be able to prove facts sufficient to satisfy the court of appeals. The prosecutor can offer to ask the expert witnesses the questions that the court of appeals thought were central: whether petitioner “knew” the wrongfulness of his act and whether his mental illness “render [ed] him substantially incapable of conforming his conduct to the requirements of the law” (A. 156). The district court then would be required to decide whether affirmative answers to the first question and nega tive answers to the second would provide sufficient evidence and, if so, whether it was an excusable mistake for the prosecutor not to have asked those questions at the first trial. I f the court found the prosecutor’s neglect to be justifiable—perhaps because based on the reasonable, albeit mistaken, belief that such questioning was unnecessary—the court could properly set the case for an other trial. 65 40 CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. D a n i e l M . F r i e d m a n , A cting Solicitor General.* B e n j a m i n R . C i v i l e t t i , A ssistan t A tto rn ey General. F r a n k H . E a s t e r b r o o k , A ssis tan t to the Solic itor General. M i c h a e l W . F a r r e l l , H e n r y W a l k e r , A ttorneys. O c t o b e r 1977. * T h e S o lic ito r G enera l is d isqualified in th is case. 66 IN THE g>uprrnu Court of tljc Unttrb States OCTOBER TERM, 1977 No. 76-6528 DAVID WAYNE BURKS, Petitioner, v. UNITED STATES OF AMERICA. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT REPLY BRIEF FOR THE PETITIONER The argument for the United States is fairly summed up in its brief at 11: “ (W)here the defect at the first trial is based upon a mistake of law rather than upon simple factual insufficiency, or where the prosecutor cannot reasonably be faulted for any factual insufficiency, the interest in accurate resolution of criminal charges outweighs the interest of defendent in avoiding a second trial after conviction at the first.” 67 2 ARGUMENT 1. THE DEFECT AT THE FIRST TRIAL IS NOT BASED UPON “A MISTAKE OF LAW RATHER THAN SIMPLE FACTUAL INSUF FICIENCY . . Whatever the merits of the “bright line” theory of the United States (Brief 21-36) in other contexts,1 there is a “bright line” in the present case between insufficiency of the evidence and legal error at the trial. The Government argues: “The court of appeals reversed petitioner’s convic tion principally because the expert witnesses for the prosecution did not give their opinions on the ultimate issue o f petitioner’s sanity.” At 10. In United States v. Sm ith, 404 F.2d (1968), the Sixth Circuit established a new standard for determining whether at the time of the offense the defendent was capable of criminal responsibility. The standard was well known to the United States.2 The weight to be ‘a) Valid misunderstanding of legal rules (example: necessity of interstate nexus in federal firearms offenses, reliance upon statutory inferences later shown to be unconstitutional, variance between indictment and proof in conspiracy cases, scope of judicial notice of essential facts such as sex, national bank charter, etc.). b) Errors attributable to defendent (example: erroneous charge requested by defendent; refusal of defendent to take mid-trial psychiatric exam). c) Exclusion of necessary proof by the court. 2 The order for psychiatric examination set out the three questions required to be answered by the Smith rule of the Sixth Circuit. A.7. The defendent at arraignment had pleaded “not quilty by reason of insanity.” A.6. 68 3 given lay testim ony had been discussed by the Sixth Circuit in United States v. Sm ith, 437 F.2d 538 (1970). There were no evidentiary or substantive surprises, simply a failure by the Government to produce necessary evidence. The Sixth Circuit reversed because the Government failed to produce evidence to satisfy the Sm ith criteria, not simply because the expert witnesses did not give their opinions on the ultimate issue o f insanity. 2. THIS IS NOT AN INSTANCE WHERE “THE PROSECUTOR CANNOT REASONABLY BE FAULTED FOR ANY FACTUAL INSUF FICIENCY . . . ” This is the second reason advanced by the United 1 States for granting a new trial. But any reasonable prosecutor would have asked his expert witnesses questions which proved or disproved the ultimate fact. Because there was such a lack of questions by the prosecutor, the ultimate facts were never answered by witnesses called by the United States. The prosecutor was either negligent in not asking the Smith questions or shrewd in not asking them because he knew the answers would be unfavorable.3 3Petitioner is not asserting that these questions need be asked verbatim. The proof on the insanity issue must be directed to the criteria adopted in Smith, however. 69 4 CONCLUSION The reversal below was for a failure of proof not attributable to any mistake of law. The prosecutor inexplicably failed to elicit proof o f the ultimate issue from the two expert witnesses he called. The court of appeals found the other evidence insufficient. The present case is not within that class of cases in which the United States presents some rationale for a limited right to retrial in insufficiency of the evidence reversals. The present case falls within the general class of cases in which the reversal on appeal was because the evidence was simply insufficient. Respectfully submitted, BARTC. DURHAM, III 1104 Parkway Towers Nashville, Tennessee 37219 A ttorney fo r Petitioner 70 LawReprints pubHc*tk,n8 37 W E ST JO S T R E E T * N E W YO RK, N Y. SOO ll