EVANS v. MICHIGAN

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–1327

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LAMAR EVANS, PETITIONER v. MICHIGAN

on writ of certiorari to the supreme court of michigan

[February 20, 2013]

Justice Sotomayor delivered the opinion of the Court.

When the State of Michigan rested its case at petitioner Lamar Evans’ arson trial, the court entered a directed verdict of acquittal, based upon its view that the State had not provided sufficient evidence of a particular element of the offense. It turns out that the unproven “element” was not actually a required element at all. We must decide whether an erroneous acquittal such as this nevertheless constitutes an acquittal for double jeopardy purposes, which would mean that Evans could not be retried. This Court has previously held that a judicial acquittal premised upon a “misconstruction” of a criminal statute is an “acquittal on the merits . . . [that] bars retrial.” Arizona v. Rumsey, 467 U. S. 203, 211 (1984) . Seeing no meaningful constitutional distinction between a trial court’s “misconstruction” of a statute and its erroneous addition of a statutory element, we hold that a midtrial acquittal in these circumstances is an acquittal for double jeopardy purposes as well.

I

The State charged Evans with burning “other real property,” a violation of Mich. Comp. Laws §750.73 (1981). The State’s evidence at trial suggested that Evans had burned down an unoccupied house. At the close of the State’s case, however, Evans moved for a directed verdict of acquittal. He pointed the court to the applicable Michigan Criminal Jury Instructions, which listed as the “Fourth” element of the offense “that the building was not a dwelling house.” 3 Mich. Crim. Jury Instr. §31.3, p. 31–7 (2d ed., Supp. 2006/2007). And the commentary to the Instructions emphasized, “an essential element is that the structure burned is not a dwelling house.” Id., at 31–8. Evans argued that Mich. Comp. Laws §750.72 criminalizes common-law arson, which requires that the structure burned be a dwelling, while the provision under which he was charged, §750.73, covers all other real property. 1 Persuaded, the trial court granted the motion. 491 Mich. 1, 8, 810 N. W. 2d 535, 539 (2012). The court explained that the “ ‘testimony [of the homeowner] was this was a dwelling house,’ ” so the nondwelling requirement of §750.73 was not met. Ibid.

On the State’s appeal, the Michigan Court of Appeals reversed and remanded. 288 Mich. App. 410, 794 N. W. 2d 848 (2010). Evans had conceded, and the court held, that under controlling precedent, burning “other real property” is a lesser included offense under Michigan law, and disproving the greater offense is not required. Id., at 416, 794 N. W. 2d, at 852 (citing People v. Antonelli, 66 Mich. App. 138, 140, 238 N. W. 2d 551, 552 (1975) (on rehearing)). 2 The court thus explained it was “undisputed that the trial court misperceived the elements of the offense with which [Evans] was charged and erred by directing a verdict.” 288 Mich. App., at 416, 794 N. W. 2d, at 852. But the court rejected Evans’ argument that the Double Jeopardy Clause barred retrial. Id., at 421–422, 794 N. W. 2d, at 856.

In a divided decision, the Supreme Court of Michigan affirmed. It held that “when a trial court grants a defendant’s motion for a directed verdict on the basis of an error of law that did not resolve any factual element of the charged offense, the trial court’s ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred.” 491 Mich., at 4, 810 N. W. 2d, at 536–537.

We granted certiorari to resolve the disagreement among state and federal courts on the question whether retrial is barred when a trial court grants an acquittal because the prosecution had failed to prove an “element” of the offense that, in actuality, it did not have to prove. 3 567 U. S. ___ (2012). We now reverse.

II A

In answering this question, we do not write on a clean slate. Quite the opposite. It has been half a century since we first recognized that the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States, 369 U. S. 141, 143 (1962) (per curiam). A mistaken acquittal is an acquittal nonetheless, and we have long held that “[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U. S. 662, 671 (1896) .

Our cases have applied Fong Foo’s principle broadly. An acquittal is unreviewable whether a judge directs a jury to return a verdict of acquittal, e.g., Fong Foo, 369 U. S., at 143, or forgoes that formality by entering a judgment of acquittal herself. See Smith v. Massachusetts, 543 U. S. 462 –468 (2005) (collecting cases). And an acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, Sanabria v. United States, 437 U. S. 54 –69, 78 (1978); a mistaken understanding of what evidence would suffice to sustain a conviction, Smith, 543 U. S., at 473; or a “misconstruction of the statute” defining the requirements to convict, Rumsey, 467 U. S., at 203, 211; cf. Smalis v. Pennsylvania, 476 U. S. 140 –145, n. 7 (1986). In all these circumstances, “the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U. S. 82, 98 (1978) (internal quotation marks and citation omitted).

Most relevant here, our cases have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. See ibid., and n. 11; Burks v. United States, 437 U. S. 1, 10 (1978) ; United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977) . Thus an “acquittal” includes “a ruling by the court that the evidence is insufficient to convict,” a “factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal culpability,” and any other “rulin[g] which relate[s] to the ultimate question of guilt or innocence.” Scott, 437 U. S., at 91, 98, and n. 11 (internal quotation marks omitted). These sorts of substantive rulings stand apart from procedural rulings that may also terminate a case midtrial, which we generally refer to as dismissals or mistrials. Procedural dismissals include rulings on questions that “are unrelated to factual guilt or innocence,” but “which serve other purposes,” including “a legal judgment that a defendant, although criminally culpable, may not be punished” because of some problem like an error with the indictment. Id., at 98, and n. 11.

Both procedural dismissals and substantive rulings result in an early end to trial, but we explained in Scott that the double jeopardy consequences of each differ. “[T]he law attaches particular significance to an acquittal,” so a merits-related ruling concludes proceedings absolutely. Id., at 91. This is because “[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty,’ ” ibid. (quoting Green v. United States, 355 U. S. 184, 188 (1957) ). And retrial following an acquittal would upset a defendant’s expectation of repose, for it would subject him to additional “embarrassment, expense and ordeal” while “compelling him to live in a continuing state of anxiety and insecurity.” Id., at 187. In contrast, a “termination of the proceedings against [a defendant] on a basis unrelated to factual guilt or innocence of the offense of which he is accused,” 437 U. S., at 98–99, i.e., some procedural ground, does not pose the same concerns, because no expectation of finality attaches to a properly granted mistrial.

Here, “it is plain that the [trial court] . . . evaluated the [State’s] evidence and determined that it was legally insufficient to sustain a conviction.” Martin Linen, 430 U. S., at 572. The trial court granted Evans’ motion under a rule that requires the court to “direct a verdict of acquittal on any charged offense as to which the evidence is insufficient to support conviction.” Mich. Rule Crim. Proc. 6.419(A) (2012). And the court’s oral ruling leaves no doubt that it made its determination on the basis of “ ‘[t]he testimony’ ” that the State had presented. 491 Mich., at 8, 810 N. W. 2d, at 539. This ruling was not a dismissal on a procedural ground “unrelated to factual guilt or innocence,” like the question of “preindictment delay” in Scott, but rather a determination that the State had failed to prove its case. 437 U. S., at 98, 99. Under our precedents, then, Evans was acquitted.

There is no question the trial court’s ruling was wrong; it was predicated upon a clear misunderstanding of what facts the State needed to prove under State law. But that is of no moment. Martin Linen, Sanabria, Rumsey, Smalis, and Smith all instruct that an acquittal due to insufficient evidence precludes retrial, whether the court’s evaluation of the evidence was “correct or not,” Martin Linen, 430 U. S., at 571, and regardless of whether the court’s decision flowed from an incorrect antecedent ruling of law. Here Evans’ acquittal was the product of an “erroneous interpretatio[n] of governing legal principles,” but as in our other cases, that error affects only “the accuracy of [the] determination” to acquit, not “its essential character.” Scott, 437 U. S., at 98 (internal quotation marks omitted).

B

The court below saw things differently. It identified a “constitutionally meaningful difference” between this case and our previous decisions. Those cases, the court found, “involve[d] evidentiary errors regarding the proof needed to establish a factual element of the . . . crimes at issue,” but still ultimately involved “a resolution regarding the sufficiency of the factual elements of the charged offense.” 491 Mich., at 14–15, 810 N. W. 2d, at 542–543. When a court mistakenly “identifie[s] an extraneous element and dismisse[s] the case solely on that basis,” however, it has “not resolve[d] or even address[ed] any factual element necessary to establish” the offense. Id., at 15, 20, 810 N. W. 2d, at 543, 546. As a result, the court below reasoned, the case terminates “based on an error of law unrelated to [the] defendant’s guilt or innocence on the ele-ments of the charged offense,” and thus falls outside the definition of an acquittal. Id., at 21, 810 N. W. 2d, at 546.

We fail to perceive the difference. This case, like our previous ones, involves an antecedent legal error that led to an acquittal because the State failed to prove some fact it was not actually required to prove. Consider Rumsey. There the trial court, sitting as sentencer in a capital case involving a murder committed during a robbery, mistakenly held that Arizona’s statutory aggravating factor describing killings for pecuniary gain was limited to murders for hire. Accordingly, it found the State had failed to prove the killing was for pecuniary gain and sentenced the defendant to life imprisonment. After the State successfully appealed and obtained a death sentence on remand, we held that retrial on the penalty phase question was a double jeopardy violation. 4

The only relevant difference between that situation and this one is that in Rumsey the trial court’s error was called a “misinterpretation” and a “misconstruction of the statute,” 467 U. S., at 207, 211, whereas here the error has been designated the “erroneous addition of [an] extraneous element to the charged offense.” 491 Mich., at 3–4, 810 N. W. 2d, at 536. But we have emphasized that labels do not control our analysis in this context; rather, the substance of a court’s decision does. See Smalis, 476 U. S., at 144, n. 5; Scott, 437 U. S., at 96–97; Martin Linen, 430 U. S., at 571. The error in Rumsey could just as easily have been characterized as the erroneous addition of an element of the statutory aggravating circumstance: that the homicide be a murder-for-hire. Conversely, the error here could be viewed as a misinterpretation of the statute’s phrase “building or other real property” to exclude dwellings. 5 This is far too fine a distinction to be meaningful, and we reject the notion that a defendant’s constitutional rights would turn on the happenstance of how an appellate court chooses to describe a trial court’s error.

Echoing the Michigan Supreme Court, the State and the United States, as well as the dissent, emphasize Martin Linen’s description of an acquittal as the “resolution, correct or not, of some or all of the factual elements of the offense charged.” 430 U. S., at 571 (emphasis added); see Brief for Respondent 11–17; see Brief for United States as Amicus Curiae 11–15 (hereinafter U. S. Brief); see post, at 6–8. They observe that the Double Jeopardy Clause protects against being twice placed in jeopardy for the same “offence,” U. S. Const., Amdt. 5, cl. 2, and they note that an offense comprises constituent parts called elements, which are facts that must be proved to sustain a conviction. See, e.g., United States v. Dixon, 509 U. S. 688 –697 (1993). Consequently, they argue, only if an actual element of the offense is resolved can it be said that there has been an acquittal of the offense, because “ ‘innocence of the charged offense’ cannot turn on something that is concededly not an element of the offense.” U. S. Brief 15. Because Evans’ trial ended without resolution of even one actual element, they conclude, there was no acquittal.

This argument reads Martin Linen too narrowly, and it is inconsistent with our decisions since then. Our focus in Martin Linen was on the significance of a judicial acquittal under Fed. Rule Crim. Proc. 29. The District Court in that case had “evaluated the Government’s evidence and determined that it was legally insufficient to sustain a con-viction.” 430 U. S., at 572. That determination of nonculpability was enough to make the acquittal akin to a jury verdict; our holding did not depend upon defining the “elements” of the offense. As we have explained, supra, at 5–6, Scott confirms that the relevant distinction is between judicial determinations that go to “the criminal defendant’s lack of criminal culpability,” and those that hold “that a defendant, although criminally culpable, may not be punished because of a supposed” procedural error. 437 U. S., at 98. Culpability (i.e., the “ultimate question of guilt or innocence”) is the touchstone, not whether any particular elements were resolved or whether the determination of nonculpability was legally correct. Id., at 98, n. 11 (internal quotation marks omitted).

Perhaps most inconsistent with the State’s and United States’ argument is Burks. There we held that when a defendant raises insanity as a defense, and a court decides the “Government ha[s] failed to come forward with sufficient proof of [the defendant’s] capacity to be responsible for criminal acts,” the defendant has been acquitted because the court decided that “criminal culpability ha[s] not been established.” 437 U. S., at 10. Lack of insanity was not an “element” of Burks’ offense, bank robbery by use of a dangerous weapon. See 18 U. S. C. §2113(d) (1976 ed.). Rather, insanity was an affirmative defense to criminal liability. Our conclusion thus depended upon equating a judicial acquittal with an order finding insufficient evidence of culpability, not insufficient evidence of any particular element of the offense. 6

In the end, this case follows those that have come before it. The trial court’s judgment of acquittal resolved the question of Evans’ guilt or innocence as a matter of the sufficiency of the evidence, not on unrelated procedural grounds. That judgment, “however erroneous” it was, precludes reprosecution on this charge, and so should have barred the State’s appeal as well. Sanabria, 437 U. S., at 69.

III A

The State, supported by the United States, offers three other reasons why the distinction drawn by the court below should be maintained. None persuades us.

To start, the State argues that unless an actual element of the offense is resolved by the trial court, the only way to know whether the court’s ruling was an “acquittal” is to rely upon the label used by the court, which would wrongly allow the form of the trial court’s action to control. Brief for Respondent 17–18, 21–22. We disagree. Our decision turns not on the form of the trial court’s action, but rather whether it “serve[s]” substantive “purposes” or procedural ones. Scott, 437 U. S., at 98, n. 11. If a trial court were to announce, midtrial, “The defendant shall be acquitted because he was prejudiced by preindictment delay,” the Double Jeopardy Clause would pose no barrier to reprosecution, notwithstanding the “acquittal” label. Cf. Scott, 437 U. S. 82 . Here we know the trial court acquitted Evans, not because it incanted the word “acquit” (which it did not), but because it acted on its view that the prosecution had failed to prove its case.

Next, the State and the United States fear that if the grounds for an acquittal are untethered from the actual elements of the offense, a trial court could issue an unreviewable order finding insufficient evidence to convict for any reason at all, such as that the prosecution failed to prove “that the structure burned [was] blue.” Brief for Respondent 16–17; U. S. Brief 15. If the concern is that there is no limit to the magnitude of the error that could yield an acquittal, the response is that we have long held as much. See supra, at 4. If the concern is instead that our holding will make it easier for courts to insulate from review acquittals that are granted as a form of nullification, see Brief for Respondent 30, n. 58, we reject the premise. We presume here, as in other contexts, that courts exercise their duties in good faith. Cf. Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13).

Finally, the State suggests that because Evans induced the trial court’s error, he should not be heard to complain when that error is corrected and the State wishes to retry him. Brief for Respondent 32–33; cf. id., at 5–9. But we have recognized that “most [judgments of acquittal] result from defense motions,” so “[t]o hold that a defendant waives his double jeopardy protection whenever a trial court error in his favor on a midtrial motion leads to an acquittal would undercut the adversary assumption on which our system of criminal justice rests, and would vitiate one of the fundamental rights established by the Fifth Amendment.” Sanabria, 437 U. S., at 78 (citation omitted). 7 It is true that when a defendant persuades the court to declare a mistrial, jeopardy continues and retrial is generally allowed. See United States v. Dinitz, 424 U. S. 600 (1976) . But in such circumstances the defendant consents to a disposition that contemplates reprosecution, whereas when a defendant moves for acquittal he does not. See Sanabria, 437 U. S., at 75.

The United States makes a related argument. It contends that Evans could have asked the court to resolve whether nondwelling status is an element of the offense before jeopardy attached, so having elected to wait until trial was underway to raise the point, he cannot now claim a double jeopardy violation. U. S. Brief 22–25. The Government relies upon Lee v. United States, 432 U. S. 23 (1977) , in which the District Court dismissed an indictment midtrial because it had failed to allege the required intent element of the offense. We held that retrial on a corrected indictment was not barred, because the dismissal was akin to a mistrial, not an acquittal. This was clear because the District Court had separately denied the defendant’s motion for judgment of acquittal, explaining that the defendant “ ‘has been proven [guilty] beyond any reasonable doubt in the world,’ ” while acknowledging that the error in the indictment required dismissal. Id., at 26–27. Because the defendant “invited the court to interrupt the proceedings before formalizing a finding on the merits” by raising the indictment issue so late, we held the principles governing a defendant’s consent to mistrial should apply. Id., at 28 (citing Dinitz, 424 U. S. 600 ).

The Government suggests the situation here is “functionally similar,” because “identifying the elements of an offense is a necessary step in determining the sufficiency of a charging document.” U. S. Brief 23. But we cannot ignore the fact that what the trial court actually did here was rule on the sufficiency of the State’s proof, not the sufficiency of the information filed against him. Lee demonstrates that the two need not rise or fall together. And even if the Government is correct that Evans could have challenged the charging document on the same legal theory he used to challenge the sufficiency of the evidence, it matters that he made only the latter motion, a motion that necessarily may not be made until trial is underway. Evans cannot be penalized for requesting from the court a ruling on the merits of the State’s case, as the Michigan Rules entitled him to do; whether he could have also brought a distinct procedural objection earlier on is beside the point.

B

In the alternative, the State and the United States ask us to reconsider our past decisions. Brief for Respondent 34–56 (suggesting overruling our cases since at least Fong Foo); U. S. Brief 27–32 (suggesting overruling Smith, Rumsey, and Smalis). 8 We declined to revisit our cases when the United States made a similar request in Smalis. 476 U. S., at 144; see Brief for United States as Amicus Curiae in Smalis v. Pennsylvania, O. T. 1985, No. 85–227, pp. 19–25. And we decline to do so here.

First, we have no reason to believe the existing rules have become so “unworkable” as to justify overruling precedent. Payne v. Tennessee, 501 U. S. 808, 827 (1991) . The distinction drawn in Scott has stood the test of time, and we expect courts will continue to have little “difficulty in distinguishing between those rulings which relate to the ultimate question of guilt or innocence and those which serve other purposes.” 437 U. S., at 98, n. 11 (internal quotation marks omitted). See, e.g., United States v. Dionisio, 503 F. 3d 78, 83–88 (CA2 2007) (collecting cases); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §25.3(a), p. 629 (3d ed. 2007) (same).

Second, the logic of these cases still holds. There is no question that a jury verdict of acquittal precludes retrial, and thus bars appeal of any legal error that may have led to that acquittal. See Ball, 163 U. S., at 671. So, had the trial court here instructed the jury that it must find the burned structure was not a dwelling in order to convict, the jury would have acquitted Evans accordingly; “ ‘[a] jury is presumed to follow its instructions.’ ” Blueford v. Arkansas, 566 U. S. ___, ___ (2012) (slip op., at 6) (quoting Weeks v. Angelone, 528 U. S. 225, 234 (2000) ). And that would have been the end of the matter. From that premise, Fong Foo’s holding follows: If a trial court instead exercises its discretion to direct a jury to return a verdict of acquittal, jeopardy also terminates notwithstanding any legal error, because there too it is the jury that returns an acquittal. And from there, Martin Linen’s conclusion is unavoidable: It should make no difference whether the court employs the formality of directing the jury to return an acquittal or whether the court enters an acquittal itself. Sanabria, Rumsey, Smalis, and Smith merely apply Fong Foo and Martin Linen in tandem: If a trial court makes an antecedent legal error (as in Fong Foo), and then grants a judgment of acquittal rather than directing the jury to acquit (as in Martin Linen), the result is an acquittal all the same.

In other words, there is no way for antecedent legal errors to be reviewable in the context of judicial acquittals unless those errors are also reviewable when they give rise to jury acquittals (contrary to the settled understanding that a jury verdict of acquittal is unreviewable), or unless we distinguish between juries that acquit pursuant to their instructions and judicial acquittals (notwithstanding that this is a purely formal distinction). Neither option has become more attractive with time. We therefore reiterate: “any contention that the Double Jeopardy Clause must itself . . . leave open a way of correcting legal errors is at odds with the well-established rule that the bar will attach to a preverdict acquittal that is patently wrong in law.” Smith, 543 U. S., at 473.

Finally, the State and the United States object that this rule denies the prosecution a full and fair opportunity to present its evidence to the jury, while the defendant reaps a “windfall” from the trial court’s unreviewable error. Brief for Respondent 6; U. S. Brief 31–32. But sovereigns are hardly powerless to prevent this sort of situation, as we observed in Smith, 543 U. S., at 474. Nothing obligates a jurisdiction to afford its trial courts the power to grant a midtrial acquittal, and at least two States disallow the practice. See Nev. Rev. Stat. §175.381(1) (2011); State v. Parfait, 96, 1814 (La. App. 1 Cir. 05/09/97), 693 So. 2d 1232, 1242. Many jurisdictions, including the federal system, allow or encourage their courts to defer consideration of a motion to acquit until after the jury returns a verdict, which mitigates double jeopardy concerns. 9 See Fed. Rule Crim. Proc. 29(b). And for cases such as this, in which a trial court’s interpretation of the relevant criminal statute is likely to prove dispositive, we see no reason why jurisdictions could not provide for mandatory continuances or expedited interlocutory appeals if they wished to prevent misguided acquittals from being entered. 10 But having chosen to vest its courts with the power to grant midtrial acquittals, the State must bear the corresponding risk that some acquittals will be granted in error.

*  *  *

We hold that Evans’ trial ended in an acquittal when the trial court ruled the State had failed to produce sufficient evidence of his guilt. The Double Jeopardy Clause thus bars retrial for his offense and should have barred the State’s appeal. The judgment of the Supreme Court of Michigan is

Reversed.

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1  Mich. Comp. Laws §750.72 (1981), “Burning dwelling house,” provides: “Any person who wilfully or maliciously burns any dwelling house, either occupied or unoccupied, or the contents thereof, whether owned by himself or another, or any building within the curtilage of such dwelling house, or the contents thereof, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years.” And §750.73, “Burning of other real property,” provides: “Any person who wilfully or maliciously burns any building or other real property, or the contents thereof, other than those specified in the next preceding section of this chapter, the property of himself or another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 10 years.”

2  In other words, the pattern jury instructions were incorrect. The State later revised them. See 288 Mich. App. 410, 416, n. 3, 794 N. W. 2d 848, 852, n. 3 (2010).

3  Compare 491 Mich. 1, 810 N. W. 2d 535 (2012) (case below), and State v. Korsen, 138 Idaho 706, 716–717, 69 P. 3d 126, 136–137 (2003) (same conclusion), and United States v. Maker, 751 F. 2d 614, 624 (CA3 1984) (same), with Carter v. State, 365 Ark. 224, 228, 227 S. W. 3d 895, 898 (2006) (rejecting this distinction), and State v. Lynch, 79 N. J. 327, 337–343, 399 A. 2d 629, 634–637 (1979) (holding double jeopardy barred retrial after trial court erroneously required extra element).

4  Under Bullington v. Missouri, 451 U. S. 430 (1981) , a capital defendant is “acquitted” of the death penalty if, at the end of a separate sentencing proceeding, the factfinder concludes that the prosecution has failed to prove required additional facts to support a sentence of death. Thus in Rumsey, the trial court’s initial “judgment, based on findings sufficient to establish legal entitlement to the life sentence, amounts to an acquittal on the merits and, as such, bars any retrial of the appropriateness of the death penalty.” 467 U. S., at 211.

5  Indeed, it is possible that this is what the trial court thought it was doing, not articulating an additional element. The statute criminalizes burning “any building or other real property, . . . other than those specified in” the previous section, which criminalizes the burning of a dwelling house. Mich. Comp. Laws §750.73. In light of the statute’s phrasing, the trial court interpreted “building or other real property” to be exclusive of the type of property described in §750.72, although the Michigan courts have explained that the term is actually meant to be inclusive. So the trial court decision could be viewed as having given the statutory “building” element an unduly narrow construction (by limiting it to nondwellings), just as the trial court in Rumsey gave the pecuniary-gain provision an unduly narrow construction (by limiting it to contract killings). Nevertheless, we accept the parties’ and the Michigan courts’ alternative characterization of the trial court’s error as the “addition” of an extraneous element. Our observation simply underscores how malleable the distinction adopted by the Michigan Supreme Court, and defended by the State and the United States, can be. And it belies the dissent’s suggestion, post, at 11 (opinion of Alito, J.), that drawing this distinction is “quite easy” here, and that the basis for the trial court’s ruling could not be subject to “real dispute.”

6  To account for Burks, the United States posits that, “[a]s used in [its] brief, the ‘elements’ of an offense encompass legally recognized defenses that would negate culpability.” U. S. Brief 11, n. 3. So too would the dissent hold that, “as used in this opinion, the ‘elements’ of an offense include legally recognized affirmative defenses that would negate culpability.” Post, at 8, n. 2. Rather than adopt a novel definition of the word “element” to mean “elements and affirmative defenses,” and then promptly limit that novel definition to these circumstances, we prefer to read Burks for what it says, which is that the issue is whether the bottom-line question of “criminal culpability” was resolved. 437 U. S., at 10.

7  The dissent says that “defense counsel fooled the judge,” post, at 6, but surely that charge is not fair. Nothing suggests counsel exceeded the permissible bounds of zealous advocacy on behalf of his client. Counsel presented a colorable legal argument, and marshaled persuasive authority: Michigan’s own criminal jury instructions, which, at the time, supported his position. See supra, at 2, 3, n. 2.

8  The dissent’s true gripe may be with these cases as well, rather than our result here, which, we have explained, follows inevitably from them. See post, at 5 (noting “how far [our cases] have departed from the common-law principles that applied at the time of the founding”); compare post, at 12 (“Permitting retrial in these egregious cases is especially appropriate”), with Fong Foo v. United States, 369 U. S. 141, 143 (1962) (per curiam) (according finality to even those acquittals “based upon an egregiously erroneous foundation”).

9  If a court grants a motion to acquit after the jury has convicted, there is no double jeopardy barrier to an appeal by the government from the court’s acquittal, because reversal would result in reinstatement of the jury verdict of guilt, not a new trial. United States v. Wilson, 420 U. S. 332 (1975) .

10  Here, the prosecutor twice asked the court for a recess to review the Michigan statutes and to discuss the question with her supervisor. 491 Mich., at 7, 810 N. W. 2d, at 538–539. If the trial court’s refusal was ill-advised, that is a matter for state procedure to address, but it does not bear on the double jeopardy consequences of the acquittal that followed.

SUPREME COURT OF THE UNITED STATES

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No. 11–1327

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LAMAR EVANS, PETITIONER v. MICHIGAN

on writ of certiorari to the supreme court of michigan

[February 20, 2013]

Justice Alito, dissenting.

The Court holds that the Double Jeopardy Clause bars petitioner’s retrial for arson because his attorney managed to convince a judge to terminate petitioner’s first trial prior to verdict on the specious ground that the offense with which he was charged contains an imaginary “element” that the prosecution could not prove. The Court’s decision makes no sense. It is not consistent with the original meaning of the Double Jeopardy Clause; it does not serve the purposes of the prohibition against double jeopardy; and contrary to the Court’s reasoning, the trial judge’s ruling was not an “acquittal,” which our cases have “consistently” defined as a decision that “ ‘actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ ” E.g., Smith v. Massachusetts, 543 U. S. 462, 468 (2005) (quoting United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977) ; emphasis added). For no good reason, the Court deprives the State of Michigan of its right to have one fair opportunity to convict petitioner, and I therefore respectfully dissent.

I

After Detroit police officers heard an explosion at a burning house, they observed petitioner running away from the building with a gasoline can. The officers pursued and ultimately apprehended petitioner, who admitted that he had burned down the house. No one was living in the house at the time of the fire.

If the house in question had been a “dwelling house,” petitioner could have been charged under Mich. Comp. Laws §750.72 (1981) for burning a dwelling, an offense punishable by imprisonment for up to 20 years. But petitioner was instead charged with “[b]urning other real property” in violation of Mich. Comp. Laws §750.73. This offense, which carries a maximum penalty of 10 years’ imprisonment, applies to “[a]ny person who wilfully or maliciously burns any building or other real property . . . other than those specified in [§750.72].” This crime is a lesser included offense of the crime of burning a dwelling house. The “necessary elements to prove either offense are the same, except to prove the greater [offense] it must be shown that the building is a dwelling.” 491 Mich. 1, 19–20, 810 N. W. 2d 535, 545–546 (2012) (internal quotation marks omitted). To prove the lesser offense, however, “ ‘it is not necessary to prove that the building is not a dwelling.’ ” Id., at 20, 810 N. W. 2d, at 546 (emphasis added).

At the close of the prosecution’s case, petitioner’s attorney moved for a directed verdict on the ground that (1) the prosecution was required to prove, as an “element” of the charged offense, that “the building was not a dwelling” and (2) “the prosecution had failed to prove that the burned building was not a dwelling house.” Id., at 5, 810 N. W. 2d, at 537. The prosecutor responded by arguing that nothing in the charged offense requires proof that the building was not a dwelling, and the prosecutor requested “a moment” to “pull the statute” and “consult with [her] supervisors.” Id., at 5–7, 810 N. W. 2d, at 537–539. The trial judge denied the prosecutor’s requests and erroneously concluded that the prosecution was required to prove that the burned building was not a dwelling. After determining that the State had not proved this nonexistent “element,” the trial judge granted petitioner’s motion for a directed verdict and entered an order that it labeled an “[a]cquittal.” App. to Pet. for Cert. 72.

The trial judge’s ruling was plainly wrong, and on appeal, defense counsel did not even attempt to defend its correctness, conceding that the judge had “wrongly added an extraneous element to the statute” under which his client was charged. 491 Mich., at 3, 810 N. W. 2d, at 536; see also 288 Mich. App. 410, 416, and n. 2, 794 N. W. 2d 848, 852, and n. 2 (2010). The Michigan Court of Appeals agreed with this concession and went on to hold that the trial judge’s ruling did not constitute an “acquittal” for double jeopardy purposes because the ruling did not represent “a resolution in the defendant’s favor . . . of a factual element necessary for a criminal conviction.” Id., at 421–422, 794 N. W. 2d, at 856 (internal quotation marks omitted). The Michigan Supreme Court affirmed, holding that when, as here, a trial judge erroneously adds an extra “element” to a charged offense and subsequently determines that the prosecution did not prove that extra “element,” the trial judge’s decision is not based on the defendant’s guilt or innocence of the elements of the charged offense. 491 Mich., at 3–4, 19–21, 810 N. W. 2d, at 536–537, 545–546. Accordingly, the Michigan Supreme Court concluded that the judge’s ruling in this case “does not constitute an acquittal for the purposes of double jeopardy and retrial is . . . not barred.” Id., at 4, 810 N. W. 2d, at 537.

II

This Court now reverses the decision of the State Supreme Court, but the Court’s holding is supported by neither the original understanding of the prohibition against double jeopardy nor any of the reasons for that prohibition.

A

The prohibition against double jeopardy “had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon,” which “prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense.” United States v. Scott, 437 U. S. 82, 87 (1978) ; see Crist v. Bretz, 437 U. S. 28, 33 (1978) . As the Court has previously explained, “the common-law protection against double jeopardy historically applied only to charges on which a jury had rendered a verdict.” Smith, 543 U. S., at 466 (emphasis added). 1 As a result, the original understanding of the Clause, which is “hardly a matter of dispute,” Scott, supra, at 87, does not compel the Court’s conclusion that a defendant is acquitted for double jeopardy purposes whenever a judge issues a preverdict ruling that the prosecution has failed to prove a nonexistent “element” of the charged offense.

Although our decisions have expanded double jeopardy protection beyond its common-law origins, see, e.g., Smith, supra, at 466–467 (acknowledging the Court’s expansion of “the common-law protection against double jeopardy”); Crist, supra, at 33–34, I nonetheless count it significant that the result the Court reaches today finds no support in the relevant common-law analogues that “lie at the core of the area protected by the Double Jeopardy Clause,” see Scott, 437 U. S., at 96. And given how far we have departed from the common-law principles that applied at the time of the founding, we should at least ensure that our decisions in this area serve the underlying purposes of the constitutional prohibition against double jeopardy. See id., at 95–96, 100–101. Yet today’s decision fails to advance the purposes of the Double Jeopardy Clause.

B

The Double Jeopardy Clause is largely based on “the deeply ingrained principle 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.” Yeager v. United States, 557 U. S. 110 –118 (2009) (internal quotation marks omitted); see also Blueford v. Arkansas, 566 U. S. ___, ___ (2012) (slip op., at 5); Martin Linen, 430 U. S., at 569. Allowing retrial in the circumstances of the present case would not result in any such abuse. The prosecution would not be afforded a second opportunity to persuade the factfinder that its evidence satisfies the actual elements of the offense. Instead, because the trial judge’s ruling in the first trial was not based on an actual element of the charged offense, retrial would simply give the prosecution one fair opportunity to prove its case.

Allowing retrial in this case would not permit prosecutors “to make repeated attempts to convict an individual for an alleged offense,” Yeager, supra, at 117. It was petitioner, not the prosecutor, who sought to terminate the trial prior to verdict. Thus, contrary to the Court’s unexplained suggestion, see ante, at 5–6, “[t]his case hardly presents the specter of ‘an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact.’ ” Sattazahn v. Pennsylvania, 537 U. S. 101 –115 (2003) (quoting Scott, supra, at 96). On the contrary, this is a case in which defense counsel fooled the judge into committing an error that provided his client with an undeserved benefit, the termination of a trial that the defense obviously did not want to run to completion. The Double Jeopardy Clause does not require that the defense receive an even greater benefit, the protection provided by an acquittal. As this Court has repeatedly emphasized in double jeopardy cases, a State has an interest in receiving “one complete opportunity to convict those who have violated its laws,” Sattazahn, supra, at 115 (internal quotation marks omitted); Scott, supra, at 100, but today’s decision deprives the State of Michigan of this valuable right.

C

The Court’s decision also flies in the face of our established understanding of the meaning of an acquittal for double jeopardy purposes. The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Amdt. 5 (emphasis added). Thus, “[d]ouble-jeopardy analysis focuses on the individual ‘offence’ charged.” Smith, 543 U. S., at 469, n. 3. And to determine what constitutes “the individual ‘offence’ charged,” ibid., the Court homes in on the elements of the offense. See United States v. Dixon, 509 U. S. 688, 696 (1993) (“In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies”). Consistent with the constitutional text’s focus on the “offence”—and thus the elements—with which a defendant is charged, the Court’s “double-jeopardy cases have consistently” defined an acquittal as a decision that “ ‘actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ ” Smith, supra, at 468 (quoting Martin Linen, supra, at 571); see also Scott, supra, at 97 (“[A] defendant is acquitted only when the ruling of the judge, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged” (internal quotation marks and brackets omitted)).

Today, the Court effectively abandons the well-established definition of an acquittal. Indeed, in the face of our repeated holdings that an acquittal for double jeopardy purposes requires a “resolution, correct or not, of some or all of the factual elements of the offense charged,” Smith, supra, at 468; Martin Linen, supra, at 571; see also Scott, supra, at 97, the Court now declares that “the touchstone [is] not whether any particular elements were resolved,” ante, at 10 (emphasis added). Instead, the Court proclaims that the dispositive question is whether a midtrial termination represented a “procedural dismissa[l]” or a “substantive rulin[g],” ante, at 5. This reformulation of double jeopardy law is not faithful to our precedents—or to the Double Jeopardy Clause itself. The key question is not whether a ruling is “procedural” or “substantive” (whatever those terms mean in this context), but whether a ruling relates to the defendant’s factual guilt or innocence with respect to the “offence,” see U. S. Const., Amdt. 5—and thus the elements—with which he is charged. See Scott, supra, at 87, 97–99, and n. 11.

When a judge evaluates the evidence and determines that the prosecution has not proved facts that are legally sufficient to satisfy the actual elements of the charged offense, the ruling, however labeled, represents an acquittal because it is founded on the defendant’s factual innocence. See Martin Linen, 430 U. S., at 572. But when a judge manufactures an additional “element” of an offense and then holds that there is insufficient evidence to prove that extra “element,” the judge has not resolved the defendant’s “factual guilt or innocence” as to any of the actual elements of the offense. 2 Thus, the ruling, no matter what the judge calls it, does not acquit the defendant of the offense with which he is charged. No acquittal occurs when a criminal trial is terminated “on a basis unrelated to factual guilt or innocence of the offense of which [a defendant] is accused.” Scott, 437 U. S., at 87, 94–95, 98–99. “[I]n a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant.” Id., at 98–99 (reasoning that, in such a case, the defendant was “neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him”).

III

Contrary to the Court’s opinion, its decision in this case is not supported by prior precedent. In all three of the principal cases on which the Court relies—Smalis v. Pennsylvania, 476 U. S. 140 (1986) ; Smith, 543 U. S. 462 ; and Arizona v. Rumsey, 467 U. S. 203 (1984) —trial judges ruled that the prosecution had failed to introduce sufficient evidence to prove one or more of the actual elements of the offenses in question. In none of these cases (and in none of our other double jeopardy cases) did a trial judge terminate a prosecution before verdict based on an element of the judge’s own creation.

The first two cases, Smalis and Smith, involved garden variety preverdict acquittals, i.e., rulings based on the ground that the prosecution had failed to introduce sufficient evidence to prove one or more of the actual elements of an offense. (Using conventional modern terminology, Rule 29(a) of the Federal Rules of Criminal Procedure explicitly labels such rulings “acquittal[s].”)

In Smalis, the judge, at the close of the prosecution’s case in chief, granted a demurrer with respect to certain charges on the ground that the evidence regarding those charges was “legally insufficient to support a conviction.” 476 U. S., at 141. The State Supreme Court held that this ruling was not an acquittal for double jeopardy purposes because it was based on a legal determination (i.e., that the evidence was not sufficient) rather than a factual finding, but we rejected that distinction. Id., at 143–144. See also Sanabria v. United States, 437 U. S. 54 –72 (1978).

Smith involved a similar situation. There, one of the elements of a firearms offense with which the defendant was charged required proof that the gun “had a barrel ‘less than 16 inches’ in length,” 543 U. S., at 464, and the trial judge dismissed this charge before verdict on the ground that the prosecution had not introduced sufficient evidence to establish this undisputed element, id., at 464–465. Before the remaining charges were submitted to the jury, however, the judge reversed this ruling and allowed the charge to go to the jury. Id., at 465. We held, however, that the judge’s prior ruling constituted an acquittal and therefore barred the defendant’s conviction for this offense. Id., at 467–469. Thus, both Smalis and Smith involved rulings that were very different from the one at issue here. In both of those earlier cases, the trial judges held that the evidence was insufficient to prove undisputed elements of the offenses in question. In neither case did the judge invent a new element.

The final case, Rumsey, differs from Smalis and Smith in only one particular. Like Smalis and Smith, Rumsey involved a ruling that the prosecution’s evidence was insufficient to prove an element, but in Rumsey the ruling was predicated on a misconstruction of an element. In that case, after the defendant was found guilty of first-degree murder, the “trial judge, with no jury, . . . conducted a separate sentencing hearing” at which he determined that no aggravating circumstances were present. 467 U. S., at 205. In particular, the judge found that the prosecution had not proved that the murder had been committed “ ‘as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.’ ” Id., at 205–206 (quoting Ariz. Rev. Stat. Ann. §13–703(F)(5) (Supp. 1983–1984)). The judge reached this conclusion because, in his (incorrect) view, that aggravating circumstance was limited to contract killings. 467 U. S., at 205–206. Holding that the judge’s ruling constituted an acquittal on the merits of the question whether a death sentence was appropriate, we noted that the ruling rested on “a misconstruction of the statute defining the pecuniary gain aggravating circumstance.” Id., at 211. Accordingly, the ruling was based on a determination that there was insufficient evidence to prove a real element; it was not based on the judicial invention of an extra “element.” And for that reason, it does not support the nonsensical result that the Court reaches today.

The Court may feel compelled to reach that result because it thinks that it would be unworkable to draw a distinction between a preverdict termination based on the trial judge’s misconstruction of an element of an offense and a preverdict termination based on the judge’s perception that a statute contains an “element” that is actually nonexistent. This practical concern is overblown. There may be cases in which this determination presents problems, but surely there are many cases in which the determination is quite easy. The present case is a perfect example, for here there is no real dispute that the trial judge’s ruling was based on a nonexistent statutory “element.” As noted, defense counsel conceded on appeal that the judge had “wrongly added an extraneous element to the statute” under which his client was charged. 491 Mich., at 3, 810 N. W. 2d, at 536.

Another good example is provided by State v. Korsen, 138 Idaho 706, 69 P. 3d 126 (2003), where a Magistrate erroneously concluded that the offense of criminal trespass under Idaho law requires a showing that the defendant did something to justify the property owner’s request for the defendant to leave the premises. Id., at 710, 716–717, 69 P. 3d, at 130, 136–137. There is no question that the Magistrate in Korsen “effectively created an additional statutory element” before concluding that the prosecution had presented insufficient evidence as to this purported “element.” See ibid. (holding that double jeopardy did not bar a retrial because the Magistrate’s “finding did not actually determine in [defendant’s] favor any of the essential elements of the crime of trespass”).

Cases in which it can be said that a trial judge did not simply misinterpret a real element of an offense but instead invented an entirely new and nonexistent “element” are cases in which the judge’s error is particularly egregious. Permitting retrial in these egregious cases is especially appropriate.

*  *  *

I would hold that double jeopardy protection is not triggered by a judge’s erroneous preverdict ruling that creates an “element” out of thin air and then holds that the element is not satisfied. I therefore respectfully dissent.

__________________________________

1  See also Crist, 437 U. S., at 33 (“The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed . . . the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittal—after a complete trial. . . . And it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was considered to be equally limited in scope”); 3 J. Story, Commentaries on the Constitution of the United States §1781, p. 659 (1833) (“The meaning of [the Double Jeopardy Clause] is, that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him. But it does not mean, that he shall not be tried for the offence a second time, if the jury have been discharged without giving any verdict . . . .” (emphasis added)); 2 M. Hale, Pleas of the Crown 246 (1778) (“It must be an acquittal upon trial either by verdict or battle”).

2  Because culpability for an offense can be negated by proof of an affirmative defense, the Court has held that a ruling that the prosecution did not submit sufficient evidence to rebut an affirmative defense constitutes an acquittal for double jeopardy purposes. See Burks v. United States, 437 U. S. 1 –11 (1978); Scott, 437 U. S., at 97–98. Thus, as used in this opinion, the “elements” of an offense include legally recognized affirmative defenses that would negate culpability.

Print this transcript Transcript: 

ORAL ARGUMENT OF DAVID A. MORAN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next in Case 11-1327, Evans v. Michigan.

Mr. Moran.

David A. Moran: Mr. Chief Justice, and may it please the Court:

A long and unbroken line of this Court's precedents stand for the principle that a judge's final determination that a defendant is not guilty is a final determination of an acquittal for double jeopardy purposes, even if that determination is wrong as a matter of law or as a matter of fact.

And even if--

Justice Sonia Sotomayor: Do we give credence to how the judge labels what the acquittal is?

David A. Moran: --No.

No.

This Court must determine, whatever its label, what has the judge done.

Has the judge made a determination that the Government has failed to prove its case, as in Martin Linen, or has the -- has the judge made a determination of something else, as in Scott, for example, pretrial delay.

Now, the Michigan Supreme Court--

Justice Anthony Kennedy: But once -- once the judge determines, quite erroneously, that it has to be a dwelling -- midway during the trial, I'm the judge, I consider this has to be a dwelling, is there any way I can make that point, make that ruling, without invoking double jeopardy?

David A. Moran: --Well, you could reserve that ruling to the end of the case.

You could make a ruling as to the jury instructions without -- or what the jury instructions are going to be without applying them to the facts of the case; in other words, without making a determination of the defendant's guilt or innocence.

Justice Anthony Kennedy: But -- but if I persist in that view, there's nothing the Government can do?

David A. Moran: The Government can try -- we learned from Smith -- try to get you to reconsider that view before the defendant puts on his case.

But once the defendant -- once the judge has made a final determination that the defendant is not guilty, even on an erroneous view of the law, this Court has held multiple times that that is a final determination, that is an acquittal, for double jeopardy purposes.

Justice Antonin Scalia: Because I suppose the judge is the Government, too.

David A. Moran: Exactly.

Once -- once the Government--

Justice Antonin Scalia: So whether the unfairness adheres in the prosecution or in the judge, the guy's been treated unfairly.

David A. Moran: --If a State chooses, Justice Scalia, to vest acquittal power in its judges, it must accept the double jeopardy consequences of that.

Justice Ruth Bader Ginsburg: Even when the defendant interjected this issue, and the defendant urged the judge to make this incorrect notion that you have to negate the higher crime in order to convict of the lesser crime.

It was the defendant that led the -- the trial judge into error.

The trial judge didn't come up with this on his own.

David A. Moran: The judge came up with this, Your Honor, on defendant's motion, that's correct, but it was actually supported by the jury instructions that were in use.

And actually, it was supported by the structure of the statutes in question.

The statute in question under which Mr. Evans was charged explicitly said that the building other than one specified in the preceding subsection--

Justice Ruth Bader Ginsburg: But you're not arguing that that was the correct charge that--

David A. Moran: --No.

We're precluded now from arguing that that's correct.

Justice Sonia Sotomayor: But you don't--

Justice Antonin Scalia: Counsel often encourage judges to do the wrong thing.

In fact, in every case, there is one of the two counsel urging the court to do the wrong thing; right?

David A. Moran: Yes, Justice Scalia.

And--

Justice Antonin Scalia: That's what the adversary system consists of.

David A. Moran: --Yes.

And in Sanabria, this Court noted that point exactly, that all acquittals, whether they're by the judge or by the jury -- or I should say almost all acquittals; some are sua sponte -- almost all acquittals, whether by judge or by jury, are upon invitation of defense counsel.

Justice Anthony Kennedy: What -- could a State provide a procedure where, if a judge makes a critical ruling mid-trial, that at the request of the opposing counsel, jury proceedings are suspended for 48 hours, and the aggrieved party can run to the court of appeals to get a mandate?

David A. Moran: I don't think the State could do that, Justice Kennedy, because of Smalis.

Justice Anthony Kennedy: Because of?

David A. Moran: Because of Smalis.

So that was essentially the situation in Smalis.

You had a bench trial.

The judge grants a demurrer, he says the evidence is insufficient, and then the prosecution attempted to run to the Pennsylvania appellate court.

And this Court said it couldn't do that because that was a final determination.

I think--

Justice Anthony Kennedy: Well, in my hypothetical, the State said -- and this isn't a final determination; the ruling doesn't become final until you have 48 hours and go to the court of appeals.

David A. Moran: --Well, I think a State could make -- investing acquittal power in judges could put limitations on that acquittal power.

Justice Sonia Sotomayor: --How would they do that?

I'd like to go back to Justice Kennedy's question.

It's easy when you have a jury, because what happens is a judge can decide whether at the end of the prosecution's case he's going to dismiss for insufficiency, or he can give it to the jury, and if the jury renders a verdict, set it aside.

Jeopardy attaches only if the judge dismisses the case after the prosecution's judgment, but not if he sets aside the verdict, correct?

David A. Moran: Well, jeopardy attaches both ways, but a retry -- a reversal is possible in the -- in the latter.

Justice Sonia Sotomayor: In the latter.

So what can a State do -- some have done something -- to ensure that even if jeopardy has attached, that there can be a valid reversal; the judge is wrong on a legal theory.

David A. Moran: Well, the easy--

Justice Sonia Sotomayor: So give us an example of what, in a judge trial, a State could do to ensure that a legally wrong judgment is still reversible.

David A. Moran: --In a bench trial, Your Honor?

Justice Sonia Sotomayor: In a bench trial.

What could it do?

David A. Moran: I think if -- if in a bench trial, if the judge had the power to acquit or convict and the judge acquits, I believe the Double Jeopardy Clause would preclude the State from coming up with a clever mechanism allowing -- for allowing appellate review.

The Court, of course -- I mean the State could, of course--

Justice Sonia Sotomayor: I thought there were in your briefs some examples -- in someone's brief, there were some examples--

David A. Moran: --In a jury trial with a judge--

Justice Sonia Sotomayor: --No, forget about a jury trial.

Let's go to the bench trial.

David A. Moran: --I don't know what--

Justice Sonia Sotomayor: You're not helping your argument by saying there's nothing a State could ever do.

David A. Moran: --Well, they could withdraw the power of judges to grant acquittals or convictions in the first place.

In other words, they could abolish bench trials, which, as the Court noted--

Justice Sonia Sotomayor: Do you know something, Counselor?

You're sinking your hole deeper.

You're not helping yourself in this argument, because how does that help the system?

David A. Moran: --Well, with all respect, Your Honor, the Double Jeopardy Clause here transcends the State's--

Justice Sonia Sotomayor: I don't disagree.

You mean no State could ever say to a judge, given -- given -- render a verdict on the prosecution's theory, and then set it aside?

If you think the theory is not legally--

David A. Moran: --After Smith, it's clear that immediate reconsideration is a possibility.

And if a State set up a system as in Lydon v. Municipal Court, where you have essentially a magistrate making a preliminary determination, and then it goes to a higher judge who goes trial de novo, that, of course, is permissible.

But if the judge is the final arbiter -- in other words, if the judge sits in the place of the jury, this Court has said over and over again that a judge verdict is equivalent to a jury verdict for purposes of double jeopardy.

So yes, courts -- a State could set up systems in which judges have less power than a jury does.

I'm not aware of any State that's done that.

I am aware of what Nevada has done, which has said that judges can't grant mid-trial directed verdicts.

And that's the way in a jury trial.

Justice Sonia Sotomayor: --You keep saying “ mid-trial ”.

David A. Moran: Yes.

Justice Sonia Sotomayor: What -- what is not mid-trial?

Some States require a judge to wait.

David A. Moran: Yes.

Yes.

Nevada.

Justice Sonia Sotomayor: What happens in those States?

David A. Moran: Well, in that case then there is no problem because if the judge makes a determination after the jury verdict, then the -- then that can be appealed under Wilson.

Justice Sonia Sotomayor: I keep talking not about jury verdicts, but about bench trials.

I want to focus on the bench trial process.

David A. Moran: If -- but if the judge at the end of a trial renders a solemn, formal, final verdict,

"I find the defendant not guilty. "

in a bench trial, I don't see a mechanism for -- for the State to appeal that determination, consistent with the double jeopardy guarantee, unless the State has set up a system as in Lydon -- as Massachusetts did in Lydon.

But short of that, a judge's determination is entitled to the same respect.

Justice Samuel Alito: If, in the middle of a trial, a judge grants a mistrial and says -- I'm sorry, grants an acquittal, and says, I think that prompt prosecution is an element of the offense and there wasn't prompt prosecution here.

Now, could there be a re-prosecution in that situation?

David A. Moran: Yes, Your Honor.

Justice Samuel Alito: Even though the judge says he thinks that that's an element of the offense.

David A. Moran: Because no part of my argument depends upon the judge's labeling.

What the judge has done in that case is -- is a mid-trial dismissal that he called an acquittal, but it was actually a dismissal for another purpose.

That's exactly what Scott was talking about.

And that is like Scott, where the judge may have characterized what he had done as acquitting the defendant, but he--

Justice Samuel Alito: Well, he saw a phantom element, and -- and that's what happened here, too, isn't it?

David A. Moran: --Well, pretrial delay is not an element of the offense.

Pretrial delay is another part of criminal procedure in this state.

Justice Samuel Alito: And this -- and the fact that this was not a dwelling wasn't an element of the offense, either.

David A. Moran: But it is clearly related to the offense.

And then Scott clarified what Martin Linen meant.

Martin Linen was an attempt to distinguish between cases in which the judge makes a ruling relating to guilt or innocence, and a ruling designed to serve some other purpose.

The problem with the line the Michigan Supreme Court drew here is that it is completely impossible to administer.

And if I could give a couple of examples, the Lynch case, from the Second Circuit, was an effort by one circuit to attempt to administer -- to follow the Maker line, and you get questions that are completely unanswerable in that case.

Is bad intent simply a gloss on the willfulness element, in which case, all you've done is misconstrue an existing element?

Or is it, as the dissent claimed in Lynch, a -- a new element?

And these are questions like how many angels can dance on the head of a pin.

They're simply semantics.

It's all labeling.

There is no -- there is no substance there.

Justice Samuel Alito: Well, there -- that's a problem.

But you're -- to come back to my earlier question, your -- what is your answer?

Your answer is that if the judge grants an acquittal based on the failure to prove anything that the judge thinks the prosecution has to prove, that's an acquittal.

Is that fair?

David A. Moran: Yes.

And -- and I fall back to this Court's footnote in Scott, that courts are perfectly capable of distinguishing between rulings relating to guilt and innocence, and rulings designed to serve other purposes.

So if you have a devious judge who's determined to package a prosecutorial misconduct ruling as an acquittal, I have no doubt that an appellate court would be able to -- to smoke that out.

Justice Samuel Alito: Well, to come back to the argument we just heard, so suppose the judge grants a mistrial for failure to prove an action within the statute of limitations, even though no statute of limitations defense was raised.

Would that be -- would that be an acquittal?

David A. Moran: Only -- I think my answer to that would depend on how you rule in the prior case, depending on whether the statute of limitations is -- is something the prosecution had to prove in order to establish guilt.

Justice Samuel Alito: All right.

Assuming for the sake of argument that it's not an element, it's not really an element, but the judge thinks it's an element.

David A. Moran: Well, if it -- if it's something that could result in an acquittal, if it is -- if the defendant raising the statute of limitations is something that could result in an acquittal -- because I come to Burks, where Burks says an affirmative insanity defense, the prosecution fails to disprove that, that is an acquittal -- when the appellate court concluded that there was failure to disprove the affirmative insanity defense.

That shows that that language in Martin Linen can't be taken as if it was construing the terms of an easement.

You have to look at what was Martin Linen getting at.

And Martin Linen is trying to identify those rulings relating to guilt or innocence, which include affirmative defenses or--

Justice Anthony Kennedy: I'm not sure I understand the rationale for your answer to your own hypothetical.

The judge characterizes a prosecutorial -- or a misconduct incident as a grounds for acquittal; it really isn't.

Then you said the court of appeals could straighten that out?

David A. Moran: --Yes.

That's Scott.

Justice Anthony Kennedy: On what rationale -- so what's the general principle that allows the court of appeals to do this sometimes and not others?

David A. Moran: If the judge has made a ruling going to the defendant's guilt or innocence and finding that as in Martin, examining the government's evidence and finding that they have failed to prove the defendant's guilt, it's final.

There can be no appeal.

But if the judge has made a ruling that is designed to serve some other purpose, so if the judge in my hypothetical were to say--

Justice Anthony Kennedy: Oh, I thought -- I thought it was the judge just subjectively does this, but he doesn't say any -- he just characterizes it as an acquittal?

David A. Moran: --That's -- that's a case, actually, quite a bit like some of the cases and it demonstrates the problem of -- of the Michigan Supreme Court's line.

So example, in Martin Linen, all the judge said is,

"This is one of the weakest cases I've ever seen. "

Presumably, if the Respondent were to win, they would be entitled to appeal a determination like that to at least try to convince the appellate court that the reason the case seems so weak to the trial judge was that the trial judge had added an extra element.

Same thing in Smalis, where the judge simply said -- he granted a demurrer by looking at the prosecution's case and saying that “ I find the evidence insufficient ”.

And in fact, in Smalis, the -- Pennsylvania tried to argue that the judge had actually heightened the burden for mens rea for third-degree murder.

And -- and so, you know, they would be entitled to make these arguments.

And so, then we get into questions of in granting acquittals, would judges have to explain all of the elements--

Justice Stephen G. Breyer: I see the problem, but I am still back to where Justice Kennedy was, and that is my own failure.

I didn't quite understand.

I thought when you grant a dismissal, and you dismiss the case in the middle of the trial because the prosecution was brought too late.

All you're doing is, in the middle of the trial, granting something that you should have granted in the first place before you impaneled the jury.

But I thought in Fong Foo, Judge Wyzanski had dismissed the case after empanelment because he wrongly thought that the U.S. attorney had been talking to a witness or a juror or something at lunch time.

And that he had -- and that's an acquittal.

And I thought Justice Harlan for the Court wrote double jeopardy.

Jeopardy attached, you can't try him again.

And I didn't think the Court ever overruled that.

That -- what--

David A. Moran: --Fong Foo has not been explicitly overruled, but I think it has been limited by Scott.

Justice Stephen G. Breyer: --So Scott says that even in judge -- Scott says Fong Foo was wrong, that that -- because the reason that Charlie Wyzanski dismissed it is he has this idea of a -- the AUSA doing something improper at lunch.

And -- and that's -- that's -- now on your theory, on the theory you just enunciated, there would -- there would -- double jeopardy wouldn't protect against the second indictment, right?

David A. Moran: Well, Justice Breyer, Fong Foo actually listed two reasons why the trial judge granted the directed verdict.

One was prosecutorial misconduct, the judge apparently thought that the prosecutor had been speaking with a witness.

Justice Stephen G. Breyer: Yes.

David A. Moran: But the second one was the total lack of credibility of the prosecution's witnesses.

And -- and when the case came--

Justice Stephen G. Breyer: That's--

David A. Moran: --When the case came to this Court, the concurring Justice said,

"The second one is good for double jeopardy purposes, but I would make clear that the prosecutorial misconduct rationale is not. "

That part, I think that concurring opinion has been effectively adopted in Scott.

So that a finding of prosecutorial misconduct on dumping this case mid trial, yes, the prosecution gets another bite at the apple, assuming that it's done on the defendant's motion.

Chief Justice John G. Roberts: One -- one of the reasons we've said that underlies double jeopardy clause is to prevent overbearing conduct by the government.

That's not an issue here, is it?

You said the government gets one fair shot at conviction.

And if there has been a legal error below, they haven't had a fair shot.

David A. Moran: Mr. Chief Justice, I would respectfully disagree.

Mr. Evans was hauled into court by the state.

He was acquitted, in our view, by the judge who is representative of the State, who was relying on the standard jury instructions--

Chief Justice John G. Roberts: Well, this business about the judge being a representative of the State, I'm not sure how far that gets you.

The government is one of the adversaries appearing before the judge, and the judge is not supposed to take the government's side.

So he is not really a part of the government.

And it does seem to me that if they had been thrown out of court because of a legal error, that's not a fair shot.

David A. Moran: --Well, I understand that view, Mr. Chief Justice, but it's contrary to a lot of this Court's cases.

I think this Court would have to review a lot of its cases, most recently Smith and Smalis and Martin Linen, all of which said that a legal error affects the quality of a judgment, and Scott also specifically said this, a legal error affects the quality of the judgment but not it's finality for double jeopardy purposes.

Justice Elena Kagan: Suppose the question--

Chief Justice John G. Roberts: No, I know that -- I'm just saying that that particular rationale for the Double Jeopardy Clause is not applicable in this case.

David A. Moran: Well, I think it is, because a citizen has been brought into court, expects to go through one trial, and they are told,

"Sir, I am finding you not guilty. "

And then to find out later, for the State to come back later--

Chief Justice John G. Roberts: That's looking at it from the defendant's perspective.

We have said that the government should have one fair shot at conviction.

And it seems to me that if they lose because of an error, that's not a fair shot.

David A. Moran: --Your Honor, I come back to the language in Martin Linen, which talks about what the purpose of the Double Jeopardy Clause is, is to protect defendants against continuing government oppression.

And that oppression arises from the anxiety of having to go through it again and again.

Justice Elena Kagan: --But isn't it -- isn't it hard to argue with a notion that your client has gotten a windfall here?

I mean, this is not continuing government oppression and -- and, you know, that's -- that -- that suggests a real harm on the part of your client.

I mean, here's a cause of a legal error, your client walks away the winner when he shouldn't have.

David A. Moran: Well, Your Honor, without the error, the trial would have -- would have continued.

But I think that argument respectfully proves too much, because there are a lot of these cases in which legal error was made.

And so, in Rumsey you could say exactly the same thing about Mr. Rumsey.

Justice Elena Kagan: Yes, I think that's right.

This is -- this is an argument against this whole line of cases, that this whole line of cases has essentially set up a system where the real purposes of the Double Jeopardy Clause do not apply and where defendants walk away with windfalls.

And I guess what's your best argument against that proposition?

David A. Moran: Well, once you accept the equivalency of a judicial acquittal to a jury acquittal, you have to accept that both actors are capable of error.

Both actors are human.

Jurors are -- are capable of making legal errors as well as factual errors.

They are capable of misunderstanding the instructions.

In fact, they are capable of being misinstructed.

Had the judge not granted the directed verdict here, she presumably would have instructed the jury the same way, and the jury would have also acquitted Mr. Evans for the same reason.

And so, to try and tease out legal and factual errors, especially when -- and often there are mixed questions of fact or law that are at stake here, I think is a losing proposition.

I think it -- I think the court has decided to draw a firm line, recognizing that an acquittal is special.

An acquittal is the most fundamental thing that can happen.

Justice Ruth Bader Ginsburg: --Could a system say, if you have double jeopardy looming in -- in -- in the case, then arguments like the one that the defendant made and the judge bought have to be made pretrial, and if they are not made pretrial, they are waived.

I mean, here the -- the -- the case was ongoing when the defendant made this suggestion as opposed the system had built into it a requirement that defendants who would make this kind of plea do it pretrial.

David A. Moran: Justice Ginsburg, I don't think it would have been right for Mr. Evans to make this argument pretrial, because it was only with the prosecution's proof that it became clear that what the prosecution was proving was that the building burned was, in fact, a dwelling house and therefore, seemed to be excluded by the statutory language and especially the commentary to the jury instructions from the definition of the offense.

Michigan is an information state.

Michigan does not require an indictment that lists every -- every little bit of the crime and all of the details.

All Michigan requires is a very simple statement of the crime and the statutory citation.

And, of course, who the defendant is and the date and venue of the alleged crime.

And so, here Mr. Evans would have had no way of knowing in advance what the prosecution was going to prove.

That's why this case is unlike Lee.

Lee is an effective indictment.

Nobody claims that Mr. Lee was innocent and that the prosecution couldn't prove the elements of the crime against Mr. Lee.

The problem was just that the indictment failed to allege a specific fact.

And that--

Justice Sonia Sotomayor: I'm sorry, I'm a little confused.

It was charged with the crime of burning down a dwelling, correct?

David A. Moran: --Mr. Evans, no.

He was charged with burning other real property.

Justice Sonia Sotomayor: Of?

David A. Moran: Burning other real property.

Justice Sonia Sotomayor: And no specific statute was cited?

David A. Moran: Yes.

Justice Sonia Sotomayor: Which one?

David A. Moran: The -- that -- that statute.

I have--

Justice Sonia Sotomayor: The dwelling statute, not the exception to the dwelling.

David A. Moran: --It's the exception to the dwelling statute.

It's -- it's 750.73, which is on page 2 of the top side brief.

Justice Sonia Sotomayor: That's what he was charged with?

David A. Moran: Yes.

Justice Sonia Sotomayor: So why did the court dismiss if he was charged with burning down a house?

I thought he was charged with burning down a dwelling, and the argument was he should have been--

David A. Moran: No.

Justice Sonia Sotomayor: --charged with burning down a house.

David A. Moran: No, he was charged with the crime in 750.7 -- 750.73, which reads in relevant part that

"a person who willfully or maliciously burns any building or other real property, or the contents thereof, other than those specified in the next proceeding subsection. "

--“ subsection of this chapter ”.

And the next proceeding section of the chapter is about burning down dwelling houses.

Justice Sonia Sotomayor: My only quibble is, you have no doubt -- the defense attorney had no doubt that he burnt down a house.

That someone burnt down a house, correct?

David A. Moran: It was -- it was allegedly a vacant house.

And apparently that's why the prosecution charged it this way.

Justice Sonia Sotomayor: Got it.

David A. Moran: So they charged it.

They are the ones who made the choice of which statute to apply.

They apparently thought that they couldn't prove that it was a dwelling house, so they proved the other crime.

And the thinking -- the thinking of the defense attorney and the thinking of the judge was that these two crimes were complementary to each other; in other words, that they did not overlap.

It was either a dwelling house or not a dwelling house, and then one statute or the other applies.

As a result of the ruling of the Michigan Court of Appeals in this case, which is now not contested, in fact the burning -- the -- the statute under which Mr. Evans was charged totally encompasses the greater crime, because any building is covered in the crime with which Mr. Evans is charged, while only specific buildings, dwelling houses, are charged in the arson--

Justice Sonia Sotomayor: It's a sentencing enhancement, is really what the argument is, the decision was.

David A. Moran: --Well, there--

Justice Sonia Sotomayor: That every -- you can be charged with burning down a dwelling and you can only get the enhancement if they prove it's a house.

David A. Moran: --You can only get the greater offense.

Justice Sonia Sotomayor: Exactly.

David A. Moran: Yes.

But a jury would have to make that determination, or the judge in a bench trial would have to make that determination beyond a reasonable doubt.

If there are no further questions I will reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Baughman.

ORAL ARGUMENT OF TIMOTHY A. BAUGHMAN ON BEHALF OF THE RESPONDENT

Timothy A. Baughman: Mr. Chief Justice, and may it please the Court:

This trial here was ended before verdict from a jury on the motion of the defendant, opposed vigorously by the prosecution, alleging essentially that the crime charged contained an uncharged element on which insufficient proof had been presented for a rational factfinder to find guilt beyond a reasonable doubt; that uncharged element being that the offense be, for want of a better term, of a -- excuse me -- the structure be for want of a better term, a non-dwelling.

We had -- that had not been alleged.

But it has been conceded throughout the appellate history of this case, from the Michigan Court of Appeals on, that there is no such element in -- in the -- in the crime.

The statute that Mr. Moran mentioned that refers to the next preceding section over 3 decades ago was held to be words of limitation; in other words, you don't have to prove it's a dwelling to prove that other real property, a building or other real property has been burned.

So in the 1970s it was held the difference between the two statutes is the greater requires proof of a dwelling or a habitation; the lesser does not.

The judge held that you have to prove the negative of the element that enhances the offense in order to prove the lesser offense; you have to prove it's a non-dwelling.

And again, that has been conceded to be error throughout the entire appellate history here.

And so the proofs were adequate, were appropriate here, and the charging document was appropriate here; and the question becomes on these facts, does termination of the trial by the judge constitute an acquittal so that jeopardy should bar a second trial?

The Jeopardy Clause is aimed at prohibiting certain governmental abuses that occurred historically.

One of them is when the government would terminate a trial that was not going well, without the consent of the defendant, in order to take another shot at it, to build a better case or perhaps get a better factfinder; and the Double Jeopardy Clause prohibits that kind of conduct by establishing through this Court's cases that mistrials without the consent of the defendant bar retrial; that abhorrent practice is barred unless a manifest necessity is shown.

And we have even extended that to the circumstance that if the judge is intending to help the defendant.

If he is doing something that he believes is in defendant's favor, if defendant has not consented, then that valued right to a verdict from the tribunal that he is before trumps everything.

But if there is consent, as there was in this case -- the defendant asked the judge to terminate the trial without going to this jury, so he gave up his valued right to a decision by this tribunal -- if he does that, then that -- the other side of that coin is, that is ordinarily outcome-determinative the other way.

A retrial is permissible unless the government has achieved the first harm by the back door, that is by goading the defendant into the mistrial.

Justice Antonin Scalia: So if -- if the judge did this on her own, that would have been okay, and there would be double jeopardy attaching?

Timothy A. Baughman: That's correct.

Justice Antonin Scalia: So we have to decide in each case whether the defendant was the initiating source of the error?

Timothy A. Baughman: In terms of the -- whether or not a judgment of acquittal was granted, yes, both the Federal rule and the Michigan rule provide that on the defendant's motion or on the court's own motion the court may grant a directed verdict.

Justice Antonin Scalia: What if the defendant just agrees with the judge?

The judge says, you know, I think this indictment is bad because you -- you have to show that it wasn't a dwelling place, and the counsel for -- says, yeah, that seems like a good -- a good idea.

Is -- is that enough to--

Timothy A. Baughman: I think that would be enough.

I think agreement with the judge's course of action would be the judge -- would be, as in the mistrial situation, would be the defendant's--

Justice Antonin Scalia: --Well, my goodness, disagreement would be malpractice, wouldn't it?

Timothy A. Baughman: --Well, it -- it depends on whether you really wish to get a verdict from this jury or whether you risk having a -- risk -- risk wanting to have a retrial before a different factfinder.

You may be very happy with--

Justice Antonin Scalia: A bird in the hand, counsel.

I -- I--

Timothy A. Baughman: --Sometimes that bird in the hand can come back and bite you, when you have a second trial.

Justice Elena Kagan: Mr. Baughman, what would happen if the defendant asked for improper instructions, really saying exactly something like this; you know, that the jury has to find this additional element that in fact it doesn't have to find?

But your theory, I would think, would say that too, the government could try the defendant again.

After all, the government didn't get its one fair shot.

Timothy A. Baughman: That -- that's correct.

And that -- that's the logic of Justice Holmes' position in Kepner, and we don't go that far, essentially because this isn't a jury case.

There is a logic to that position, but it is -- there's--

Justice Elena Kagan: You don't go that far, in other words, just because it doesn't happen to be this case, but do you concede that the logic of your position would extend to improperly instructed juries?

Timothy A. Baughman: --It would to a certain extent but it is -- it is cut off by two facts.

One is simply, as -- as Justice Holmes often said, the -- the life -- an ounce of -- I'm -- excuse me, an ounce of logic is often trumped by a pound of history.

We have historically said that a verdict by the factfinder, by the jury, terminates jeopardy and there is no inquiry into--

Justice Elena Kagan: Well, we've historically said it in this context, too.

I mean, the cases that you are asking us to overrule go back 50 years.

Timothy A. Baughman: --Well, when I say historically I mean back to the time of the founding, in terms of when the Double Jeopardy Clause was promulgated and adopted into the Constitution.

Fifty years is not back to when we were determining what it is we were protecting against when we adopted the clause.

And as I think most of the commentators have noted, there is very little explanation in Fong Foo as to how the Court came out where it came out, and there has been very little explanation since as to how we got from the common law prohibition of a retrial after acquittal on the merits by a jury, to a ruling of law by the judge that no jury could find guilt beyond a reasonable doubt being the same thing, which is where we are today.

Justice Ruth Bader Ginsburg: You cannot--

Justice Antonin Scalia: --Well, we didn't have it, at the time of the founding, any mechanism for a judge to do that.

I mean, this -- this is a new procedure, and how it fit into the prohibition of double jeopardy was certainly a -- an open question.

It's not as though this procedure existed at the time of the founding or in English law before then, and was never adequate to -- to constitute double jeopardy.

It's a new procedure introduced, so the question for the Court was, well, you know, if it's the judge rather than the jury that pronounces the acquittal, does -- does that constitute double jeopardy?

Timothy A. Baughman: Well, I think you are exactly right.

It, of course, is a new procedure; it didn't exist at the time of the founding.

So our question then becomes is this new procedure sufficiently equivalent to the procedure that is historically protected, that it's -- that the protections that it is designed to guard against are served when we bar retrial in these circumstances?

And I think as Justice Kagan has indicated, there are many circumstances where what -- what we are doing is giving the defendant a windfall while serving no interest that was protected by the Jeopardy Clause.

So if it's to be an analog, then we need to see does it really closely approximate a retrial after acquittal on the merits by a jury--

Justice Elena Kagan: But the point I was making was that the same windfall is received by the defendant that gets an acquittal from an improperly instructed jury.

Timothy A. Baughman: --But -- that is true, except we -- we could speculate that's -- that's true, but we don't know why the jury came back the way it did.

The jury may have acquitted for an entirely different reason.

We don't know, we don't have special verdicts and we don't have any mechanism for requiring, so we treat -- you have to have a line somewhere.

Jeopardy terminates with the jury verdict, which may have been misinstructed, but we don't know why they came out the way they did.

Justice Stephen G. Breyer: Now -- now, I take it you -- you -- you agree that sometimes the prosecution -- I'm not saying anyone would -- but they -- the defendant's acquitted by the jury so -- because he doesn't find -- they don't find enough evidence and so the prosecutor thinks,

"I think I'd like to try him again. "

and then he's acquitted again.

"I'd like to try him again. "

and he's acquitted again.

Now, substitute judge for jury, the same thing could happen.

I mean, I don't see why not.

And there's no answer to that, is there?

And if there's no answer to that, the same bad thing could happen.

Well, then you're going to have to start distinguishing among which judge or jury acquittals do or do not invoke the problem of the Double Jeopardy Clause.

And where I'm driving is that -- that there is a principle and the principle was -- seems the simplest way to put it is where in fact the acquittal rests upon a judgment that there isn't enough evidence, that's it, that's what we're after.

And where it's some procedural thing or not, maybe we aren't.

Okay.

Now, the virtue of that is it's simple, it's consistent with the cases, it's been clear.

And you're advocating let's go into that and change it or at least interpret the cases that's consistent with it.

And we're saying there wasn't enough evidence is because the judge had in mind a legal point that he was wrong about, then Double Jeopardy Clause doesn't work.

But if the judge was right, it does work.

Well, except for the matter of substantive evidence.

Now, that waste is your opponent lies a mess.

I just went through that long thing, because I don't want you to get -- sit down without addressing what I see as a central problem, namely, if we don't accept his view, it's going to be a terrible mess.

Timothy A. Baughman: Well, let me say two things.

One is we don't -- we don't have the circumstance that existed at the common law that the Jeopardy Clause was designed to protect against of the executive simply saying,

"After an acquittal by the fact finder, let's try him again, let's try him again, let's try him again. "

Something has to happen in-between there, and that is, that a court has to determine -- neutral and detached arbiters have to determine that what happened when the judge granted the directed verdict of acquittal, as it's known in Michigan, was not that at all.

The judge actually did something different.

And if the court doesn't interpose on the prosecution's request, there will be no retrial.

So it's not the harassment and abusive practice of simply starting a new prosecution, we're trying to get what happened in that--

Justice Stephen G. Breyer: Now, you're beginning to make distinctions.

Timothy A. Baughman: --Yes.

Justice Stephen G. Breyer: And once you make those distinctions, I go back to the question I asked, which was there is a distinction.

The distinction is whether it's a procedural ground or -- and Justice Harlan's -- it's whether there was --

"Just talk to the U.S. attorney, I didn't like it. "

or “ Talk to the witness ” or “ The prosecution brought too late ”.

The other side of it where the clause attaches is where it was done on a substantive basis, not enough evidence.

I said -- I don't want to repeat myself, but I'm saying what he's coming up with is a simple, clear rule basically consistent with the cases and why shouldn't we follow it.

Timothy A. Baughman: Well, I think -- I think consistent with the cases, and also clear, is to apply Martin Linen Supply by the very terms that it uses, that is, the resolution that we're talking about the judge making is moored to something.

It's moored to the elements of the crime.

We're talking about somebody being twice tried for the same offense.

How do we define offense in the law?

In other double jeopardy cases, this Court has taken an elements approach.

Two -- two offenses are -- are different if one requires proof of an element, the other does not.

We look to the elements.

And to direct a jury trial, this Court has been very active very recently in determining how is it that we determine when somebody has a right to a jury trial on some fact before punishment can be imposed?

We look to what are the elements that have to be proven beyond a reasonable doubt.

If a fact is necessary to -- to -- in order for punishment to be imposed, if that has to be proven, then it is a matter for jury trial and it has to be proven beyond a reasonable doubt.

So when this Court said one or more of the factual elements of the offense in Martin Linen Supply, I took it to mean -- and I have always taken it to mean -- one or more of the factual elements.

And we can identify what those are.

We have to identify them in every case.

This is not a -- a strange process you have to instruct on them, determine what they are and use those.

Justice Samuel Alito: If the judge -- if the judge simply misinterprets one of the elements, but doesn't add a new element, you say that there would be double jeopardy there, right?

Timothy A. Baughman: Yes.

Justice Samuel Alito: Isn't that going to be a very difficult line to draw?

Timothy A. Baughman: It can be a very difficult line to draw, but all tests can sometimes involve difficult lines to draw.

We used to have a no evidence test for whether evidence was sufficient and we -- that was changed in Jackson v. Virginia to whether a reasonable juror could find guilt beyond a reasonable doubt.

And you will find a great many dissents in cases between appellate judges on whether or not this case itself involved sufficient proof for a jury to find guilt beyond a reasonable doubt.

The test is not always easily -- easily applicable.

Neither was the no evidence test.

So there might be some--

Justice Samuel Alito: Let me give you an example.

Suppose the -- a statute makes it a crime to burn down a dwelling, and the judge interprets dwelling to mean a building that is currently lived in and, therefore, not including a vacation home.

And let's assume that's an incorrect interpretation.

Now, is that an incorrect interpretation or is that the addition of a new element to the statute, namely, that it is a building in which people -- that's one element, and the other is people are currently living there?

Timothy A. Baughman: --I -- I would define -- I would draw the line at any time the court requires the prosecution to prove a fact that under the law passed by the legislature, the prosecution never has to prove in order to make out the case.

Justice Antonin Scalia: Well, that's every misinterpretation.

I mean, I don't know why this case doesn't involve simply a misinterpretation of what the elements of the crime are.

I mean, any misinterpretation you can -- which goes beyond the minimum that the -- that the statute requires can be recharacterized as adding an additional element.

Timothy A. Baughman: Well, it does involve a -- a mischaracterization of what the elements were, but not of an element.

The judge didn't here say,

"You can't prove that this is a building unless it was a dwelling. "

"You can't prove it was real property unless it was a dwelling. "

The judge said,

"You have -- you can prove those things and it's not enough. "

"You also have to prove that it was a non-dwelling in this case. "

Justice Elena Kagan: But in several of our cases, what the court has done wrong is to make the prosecution prove additional facts in order to prove an element.

So the distinction that you're drawing is one between incorrectly making the prosecution prove additional facts and incorrectly saying that the prosecution has to show an additional element.

And I guess I just don't understand that distinction.

Timothy A. Baughman: Well, I would suggest that this is an opportunity for this Court to draw the line at does -- does the judge require -- has the judge required the prosecution to prove something the statute doesn't require to be proven, it's not one of the factual elements of the offense.

Or has the judge -- the error the judge can make under Martin Linen Supply -- has the judge simply misassessed the evidence?

The judge has looked at it and said,

"You know, I -- I understand all your proofs, I'm looking at them, and they're just not enough for a reasonable juror to find guilt. "

Justice Elena Kagan: Well, if I understand your test correctly, under your test, Rumsey, Smalis and Smith would all have come out differently.

Timothy A. Baughman: No, I don't think so.

Rumsey is -- is a difficult case, but Rumsey is a verdict case.

Rumsey is not a directed verdict case.

The judge in Rumsey was the fact finder.

Rumsey is your bench trial.

It's -- it's -- it's complicated because it was a sentencing case, a death penalty sentencing case that this Court treats the hearing the same as the trial for double jeopardy purposes, but the judge was the fact finder and that it was more like a misinstructed jury.

The judge himself--

Justice Antonin Scalia: So you're saying that your -- your approach doesn't solve the bench trial problem any more than your friend's approach, right?

Timothy A. Baughman: --A verdict is a verdict, I agree with Mr. Moran.

When the judge on the merits returns a verdict, what the judge does or the jury does in returning a verdict on the merits is very different than what the judge does on a judgment of acquittal.

The jury weighs credibility and assesses the weight of evidence, and the judge is prohibited from doing those things, is supposed to be by the law in making his decision.

His is the ruling of law as gatekeeper that -- that we won't even reach this decision.

The jury is expressing its opinion based on the evidence.

And although it can be proven that they've reached a result contrary to reality, they can't be right or wrong.

Legally, their opinion is their opinion of those 12 collective people after doing something the judge isn't allowed to do.

So the directed verdict isn't, I don't think, a perfect analog to the jury trial.

But the bench trial issue gets very complicated because it is possible to do something with a bench trial that we don't do with jury trials, and that is have specific factfinding as to the elements.

Many jurisdictions do.

There is, in fact, a case -- the Lynch case that Mr. Moran cited, where, on rehearing en banc, the court split evenly as to whether or not the judge's verdict, where the judge had actually specifically found all of the elements -- crime is elements A, B, and C, I find them; I don't find element B, so I acquit -- the court split five to five on rehearing en banc and whether or not that judge had really announced two verdicts and it could be reformed -- be reformed to a conviction.

And Justice Sotomayor was one of the members of the five who would have addressed the question of: Is that not different?

The form of the language doesn't control.

Has not the judge actually entered a guilty verdict in that circumstance?

That's a very, you know, kind of off-the-beaten-track kind of a situation.

In a jury trial where a judge simply takes the case from the jury on the motion of the defendant and resolves the fact that the legislature has not said that one needs to be proven, that is not one of the constituent parts of the crime, that is not something that need be proven to impose punishment under the law, then he's done something very different than what the jury has done.

And to reverse that and allow the prosecution to have one full and fair opportunity we believe imposes no cruelty or oppression upon the defendant.

Thank you very much.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Gannon.

ORAL ARGUMENT OF CURTIS F. GANNON, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

Curtis E Gannon: Mr. Chief Justice and may it please the Court:

We believe the Court can resolve this case by distinguishing between the misconstruction of an element and the erroneous addition of an element to the case.

But if the Court's unwilling to draw that particular distinction, it could also resolve the case by allowing the government to appeal in both of those instances.

This goes to the question that Justice Kagan was asking near the end of my friend's argument.

We don't think that that would require overruling any of the Court's cases.

We think it would require narrowing Smalis and Rumsey to their facts, and -- but Smith would not be a problem in that context.

Rumsey is distinct for the reason that my friend suggested.

It was actually a case involving factfindings by the judge.

The Court characterized it as a special verdict made by the sole decisionmaker there.

It was not an instance like this, where the judge had taken the case away as a matter of law from the jury because there wouldn't be any sufficient evidence.

It has been cited later on in this cases, in particular in Smalis, as being about something like a sufficiency decision, but on its facts, that is not what it was.

Smith is about a completely separate question because there is no dispute there about the appropriate construction of the element.

The firearms offense there, the element in question was whether the barrel length was less than 13 inches.

There was a question about whether certain evidence that the firearm in question was a pistol was sufficient to satisfy that burden, but there was no doubt about what the -- what the element was.

It was 13 inches or less.

And so it wasn't about misconstruing the element.

Smalis is probably the hardest case in this context, but if you look at what actually happened in Smalis and what was at issue in the demurrer there, the decision that the Court was reviewing was one that was principally about whether there was sufficient evidence of causation which was an undisputed element of each of the counts at issue there, and only in footnote 7 of the Court's opinion did it address potential misconstruction of the element.

And it was a different element.

This was what my -- my friend Mr. Moran mentioned--

Justice Stephen G. Breyer: Let's go through this.

My basic question: Normally, a judge will wait till the jury comes in and then decide, if the jury convicts him, whether to set it aside.

So there's no problem.

So now we have the judge -- for one reason or other, this judge has decided to grant the motion of acquittal in the middle of the case.

Now, this is unusual, I think -- I hope.

And if so, though, the judge might not think of writing down his reasons.

So he might just say there isn't enough evidence.

And now it happens that, just before he did that, the defense lawyer argued to him an erroneous theory.

All right.

An added element or something or other.

Some kind of misconstruction of this.

What happens then?

Curtis E Gannon: --Well, I think that we -- we normally expect judges to give reasons for their decisions.

Justice Stephen G. Breyer: Yes.

But this a judge, after all, who for some reason -- we don't know what -- decided instead of waiting, as they normally would do, grant it in the middle of the case.

Curtis E Gannon: Well, in the State of Michigan, the rule does not permit the judge to reserve the ruling on this motion.

Justice Stephen G. Breyer: Well, I think there are a lot more places--

Curtis E Gannon: So, and actually, in the vast majority of states--

Justice Stephen G. Breyer: --They do.

They--

Curtis E Gannon: --that's the rule.

The Federal rule was only changed in 1994 to allow this type of--

Justice Stephen G. Breyer: --And then this is a--

Curtis E Gannon: --decision to be reserved after trial.

Justice Stephen G. Breyer: --This has arisen a lot more than -- than I think.

All right.

Fine.

Thank you.

Curtis E Gannon: And in fact, in the Federal context--

Justice Stephen G. Breyer: And in that case, do they have to write it down?

Curtis E Gannon: --Well, I -- I think that the rule in Michigan, and in the Federal Rule 29, does require the judge to make a determination of -- to satisfy that -- that there's an acquittal, which would mean that there is no -- no sufficient evidence to -- to support a guilty--

Justice Sonia Sotomayor: But many states have a different rule.

Curtis E Gannon: --Many -- many states--

Justice Sonia Sotomayor: And many states permit the judge to reserve it till after the jury verdict.

Curtis E Gannon: --My -- my understanding is that most states do not permit that.

The Federal Government only started permitting that in 1994, and even the last time the Justice Department studied this about ten years ago, it concluded that, notwithstanding the 1994 rule amendment in the Federal rules, which came with advisory committee notes strongly encouraging judges to reserve these sorts of decisions precisely to preserve the public's interest.

So notwithstanding--

Justice Stephen G. Breyer: So then, in other words, when an acquittal--

Justice Antonin Scalia: Finish the sentence.

Notwithstanding that, what?

Curtis E Gannon: --Notwithstanding that, in approximately 70 percent of the cases in which there are Rule 29 verdicts, they are done midtrial, even in the Federal system, at least in the early 2000s is the only data collection that I'm aware of.

And so this -- this still is a problem.

I think that if -- if it looks like the decision is based on classic insufficiency of the evidence and there is no argument about whether it was -- it's based on a misconstruction or an erroneous addition of the elements, then we -- we would have to be -- we would lose, unless the Court's willing to overturn the broader line of cases in Martin Linens, Sanabria, Scott, and the other cases that were--

Justice Stephen G. Breyer: --Do you have any -- your -- your idea of what the empirical situation is in the last 30 or 40 years?

Have most U.S. prosecutors or prosecutors in these states thought that they could appeal an acquittal in the middle of the trial on the ground that the judge made a mistake of law?

Curtis E Gannon: --I don't think that they -- they have mostly thought that, but the Federal Government certainly has maintained that that -- that that is appropriate, and we think that in the Maker decision in the Third Circuit in 1984 recognized this.

We do think that there is -- my -- my friend Mr. Moran asks the Court to conclude that any decision like this that is predicated upon a supposed erroneous addition of an element could easily be recharacterized as a misconstruction of another element.

And I think that -- that while at some formal level that -- that that might be theoretically true, in an egregious case like this, there is a distinction, which is that if -- if this were an element of the offense that needed to be charged in the indictment, at least in the Federal system, then the failure to have alleged that the structure here was a non-dwelling would have made the indictment invalid, and the Defendant would have been able to make exactly the same legal argument he made to the judge here, which is to say that the prosecution has failed to prove -- has failed even to allege one of the necessary elements of the offense, which is that this structure is not a dwelling.

We knew that that particular--

Justice Ruth Bader Ginsburg: Mr. Gannon, if we -- if we adopt your rule, it -- it can't be for this case only.

And I -- I think this characterization, nonexistent element, or a court's misconstruction of an element, I think in many cases you could do -- call it one or call it the other.

So that -- that's a difficult line to -- to adopt.

Curtis E Gannon: --Well, I don't think it's difficult in the sense that most -- most of the cases that we are talking about don't involve this type of error.

The cases that this Court has decided, Rumsey, Smalis, and Smith, even the Petitioner doesn't characterize this case as involving additional elements.

And this Court has recognized in Lee that when the error is one that kept the indictment from being valid because it failed to charge a relevant element, and the judge did not rule on that until after jeopardy had attached, the Government was still entitled to appeal that decision, and if it were erroneous -- the Government's only going to get a chance at retrial if the judge's decision was legally erroneous, then, therefore, it demonstrates that there was no so-called acquittal on the -- on the offense charged--

Justice Sonia Sotomayor: Counsel, you gave us earlier the statistics of how many judges grant Rule 29 motions in trial.

I think you said 76 percent.

What's the gross number relative to the number of actual verdict decisions by juries or the judge himself?

Curtis E Gannon: --The only data that I have seen about this is data that the Justice Department collected about ten years ago.

It was from the early 2000s.

And the conclusion there was that there were approximately 73 pretrial Rule 29 dismissals per year--

Justice Sonia Sotomayor: Out of what number?

Curtis E Gannon: --which actually is a larger number than you -- than you might at first think, because that represents about 10 percent of the number of cases that were actually resolved by jury verdicts.

And so it -- it is not uncommon.

I mean, this particular type of error that we have in this case we think is the most egregious kind, the non-existent element error, which the Government had also pointed out in its amicus brief in Smalis, we think is the most egregious kind of error.

It's one that demonstrates that the court is engaging in -- it's usurping the province of the legislature in redefining the scope of the offense.

And we think, under the terms of the Double Jeopardy Clause itself, which talks about whether there's been -- somebody's been subject to being twice in jeopardy for the same offense -- then it -- it matters what the offense was.

And when the judge has redefined the -- the crime so extensively that the indictment literally would have been invalid and could have been dismissed as not adequately alleging the elements of the offense, and we know that that is something the Government would have been able to appeal.

We also know that the Government would be able to appeal if the judge had reserved decision until after the jury had returned a jury -- a guilty verdict.

We acknowledge, as the State does, that jury verdicts are different.

If a jury is mis-instructed and a jury returns an acquittal, that we are not quarrelling with that in any way; we don't think there's any purchase in the Court's case law to do that.

And I think one of the reasons is because the jury verdict might be attributable not just to mistake or error, but also to lenity or compromise.

There -- there are lots of reasons why we don't exactly know why a jury did what it did, and why juries generally enter general verdicts.

And that makes it different from what we have here.

We have here an instance where the court, as a matter of law, at the defendant's behest, took the case away from the jury.

We think the fact that the defendants chose--

Justice Antonin Scalia: Is that important, “ at defendant's behest ”?

Curtis E Gannon: --We do think that that's important by analogy to the Court's mistrial cases in the Double Jeopardy Clause context.

Justice Antonin Scalia: So you -- you're arguing that this should only -- only be -- this rule should only be applied when the defendant asks for it.

Curtis E Gannon: Or if the defendant consents to it, as is the case in the mistrial cases in the double jeopardy context.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Moran, you have five minutes.

REBUTTAL ARGUMENT OF DAVID A. MORAN ON BEHALF OF THE PETITIONER

David A. Moran: Thank you, Mr. Chief Justice.

Responding to Mr. Gannon's argument first.

I do characterize Rumsey as an additional element case.

And I also characterize it as a misconstrued element case.

It's a perfect example of how these cases can be construed either way.

The judge required a contract.

You can call that an additional element to the aggravating circumstance, or you can call it as a misconstruction of what pecuniary gain means in the first place.

The same here.

The error here can be construed as a misconstruction of the element that the property burned has to be a building, and the judge says,

"Looking at the statute, I construe that to mean a particular type of building. "

Or it can be, as the prosecution construed it, as the addition of an element.

There is no difference between the two characterizations.

Turning to the -- the broader question about this whole line of cases, and should this Court go back and revisit this whole line of cases, is there really a problem here?

We have no amicus briefs from any states indicating that there's a problem.

We have only the amicus from the United States saying that there's a problem.

Is there a problem here that justifies going back and revisiting 50 years, or possibly 108 years, all the way back to Kepner -- all of this case law?

We submit not, especially since as this Court noted just six years ago in Smith, there is an easy solution if there really is a problem.

If there really is a problem with judges going wild and granting directed verdicts mid-trial for no apparent reason, all that has to be done is the states can fall into that, as we can say judges can't do that, or judges as an intermediate -- states as an intermediate step could at least give judges the power to reserve that decision--

Justice Anthony Kennedy: Have any states done that?

I'm somewhat concerned about telling a judge that if a judge's best judgment says there's insufficient evidence, that then it has to proceed with a trial.

David A. Moran: --I would be, too, Justice Kennedy.

I think it would be a mistake.

I'm not aware of any state since this decision -- since this Court's decision in Smith -- that have followed Nevada's lead.

There are good reasons to give judges this acquittal power.

Namely, preserve the State's resources, preserve the jury's time, and present -- prevent the defendant from having to go through a trial that is going nowhere.

And so there are good reasons why States don't do this.

States have apparently made the decision, even after being alerted in Smith that there's something they can do about it, that the good of giving judges this mid-trial directed verdict acquittal power outweighs the bad.

Finally, I'd just like to respond to Mr. Baughman's point, and it was also raised by Mr. Gannon, about how jury verdicts are different.

There's something special about jury verdicts, because we don't always know why they granted the verdict.

But we have the same problem with judicial directed verdicts.

And we have Martin Linen, where the judge just says,

"This is the weakest case I have ever seen. "

We have Smalis, where he just says it's legally insufficient.

If the Court adopts the line that the prosecution and the Solicitor General would have you adopt, you're going to have to require judges to give very specific findings as to what the elements of the offense are, and which ones that they don't find.

And that itself would require a radical reworking of this Court's jurisprudence.

If there are no further questions--

Chief Justice John G. Roberts: Thank you, counsel.

David A. Moran: --thank you, Mr. Chief Justice.

Chief Justice John G. Roberts: The case is submitted.