evans michigan argued november decided february state michigan rested case petitioner evans arson trial granted evans motion directed verdict acquittal concluding state failed prove burned building dwelling fact mistakenly believed element statutory offense state appeals reversed remanded retrial affirming state held directed verdict based error law resolve factual element charged offense acquittal double jeopardy purposes held double jeopardy clause bars retrial evans offense pp retrial following acquittal barred even acquittal based upon egregiously erroneous foundation fong foo erroneous decision exclude evidence sanabria mistaken understanding evidence suffice sustain conviction smith massachusetts misconstruction statute defining requirements convict arizona rumsey relevant acquittal encompasses ruling prosecution proof insufficient establish criminal liability offense see scott burks contrast procedural rulings lead dismissals mistrials basis unrelated factual guilt innocence acquittals substantive rulings conclude proceedings absolutely thus raise significant double jeopardy concerns scott trial clearly evaluated state evidence determined legally insufficient sustain conviction martin linen supply evans acquittal product erroneous interpretation governing legal principles error affects accuracy determination acquit essential character see scott pp state attempted distinguish cases ground involved sufficiency factual elements charged offense evans case concerned error law unrelated guilt innocence perceives difference case like previous ones involves antecedent legal error led acquittal state failed prove fact actually required prove state claim actual element offense resolved acquittal offense evans verdict based something concededly element argument reads martin linen narrowly inconsistent decisions since martin linen focused significance district acquittal based nonculpability determination result depend defining elements offense culpability touchstone whether particular elements resolved whether nonculpability determination legally correct scott pp additional arguments state raise support lower distinction unpersuasive state claims unless actual element offense resolved trial way know whether ruling acquittal rely upon label wrongly allow form trial action control however instant decision turns form trial action whether action serves substantive procedural purposes state argue grounds acquittal untethered actual elements offense trial issue unreviewable order finding insufficient evidence convict reason presumes courts exercise duties good faith state also suggests evans heard complain error induced corrected state wishes retry midtrial acquittals result defense motions claims lee evans required ask resolve whether nondwelling status element offense jeopardy attached however lee involved midtrial dismissal akin mistrial case involves ruling sufficiency state proof pp declines revisit decisions fong foo smith rumsey smalis pennsylvania reason believe existing rules become unworkable justify overruling precedent payne tennessee logic cases still holds objection rule denies prosecution full fair opportunity present evidence jury defendant reaps windfall trial unreviewable error sovereigns power prevent situations disallowing practice midtrial acquittals encouraging courts defer consideration motion acquit jury renders verdict providing mandatory continuances expedited interlocutory appeals pp reversed sotomayor delivered opinion roberts scalia kennedy thomas ginsburg breyer kagan joined alito filed dissenting opinion opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press lamar evans petitioner michigan writ certiorari michigan february justice sotomayor delivered opinion state michigan rested case petitioner lamar evans arson trial entered directed verdict acquittal based upon view state provided sufficient evidence particular element offense turns unproven element actually required element must decide whether erroneous acquittal nevertheless constitutes acquittal double jeopardy purposes mean evans retried previously held judicial acquittal premised upon misconstruction criminal statute acquittal merits bars retrial arizona rumsey seeing meaningful constitutional distinction trial misconstruction statute erroneous addition statutory element hold midtrial acquittal circumstances acquittal double jeopardy purposes well state charged evans burning real property violation comp laws state evidence trial suggested evans burned unoccupied house close state case however evans moved directed verdict acquittal pointed applicable michigan criminal jury instructions listed fourth element offense building dwelling house crim jury instr supp commentary instructions emphasized essential element structure burned dwelling house evans argued comp laws criminalizes arson requires structure burned dwelling provision charged covers real persuaded trial granted motion explained homeowner dwelling house nondwelling requirement met ibid state appeal michigan appeals reversed remanded app evans conceded held controlling precedent burning real property lesser included offense michigan law disproving greater offense required citing people antonelli app rehearing thus explained undisputed trial misperceived elements offense evans charged erred directing verdict mich rejected evans argument double jeopardy clause barred retrial divided decision michigan affirmed held trial grants defendant motion directed verdict basis error law resolve factual element charged offense trial ruling constitute acquittal purposes double jeopardy retrial therefore barred granted certiorari resolve disagreement among state federal courts question whether retrial barred trial grants acquittal prosecution failed prove element offense actuality reverse ii answering question write clean slate quite opposite half century since first recognized double jeopardy clause bars retrial following acquittal even acquittal based upon egregiously erroneous foundation fong foo per curiam mistaken acquittal acquittal nonetheless long held verdict acquittal reviewed error otherwise without putting defendant twice jeopardy thereby violating constitution ball cases applied fong foo principle broadly acquittal unreviewable whether judge directs jury return verdict acquittal fong foo forgoes formality entering judgment acquittal see smith massachusetts collecting cases acquittal precludes retrial even premised upon erroneous decision exclude evidence sanabria mistaken understanding evidence suffice sustain conviction smith misconstruction statute defining requirements convict rumsey cf smalis pennsylvania circumstances fact acquittal may result erroneous evidentiary rulings erroneous interpretations governing legal principles affects accuracy determination alter essential character scott internal quotation marks citation omitted relevant cases defined acquittal encompass ruling prosecution proof insufficient establish criminal liability offense see burks martin linen supply thus acquittal includes ruling evidence insufficient convict factual finding necessarily establish es criminal defendant lack criminal culpability rulin relate ultimate question guilt innocence scott internal quotation marks omitted sorts substantive rulings stand apart procedural rulings may also terminate case midtrial generally refer dismissals mistrials procedural dismissals include rulings questions unrelated factual guilt innocence serve purposes including legal judgment defendant although criminally culpable may punished problem like error indictment procedural dismissals substantive rulings result early end trial explained scott double jeopardy consequences differ law attaches particular significance acquittal ruling concludes proceedings absolutely permit second trial acquittal however mistaken acquittal may present unacceptably high risk government vastly superior resources might wear defendant though innocent may found guilty ibid quoting green retrial following acquittal upset defendant expectation repose subject additional embarrassment expense ordeal compelling live continuing state anxiety insecurity contrast termination proceedings defendant basis unrelated factual guilt innocence offense accused procedural ground pose concerns expectation finality attaches properly granted mistrial plain trial evaluated state evidence determined legally insufficient sustain conviction martin linen trial granted evans motion rule requires direct verdict acquittal charged offense evidence insufficient support conviction rule crim proc oral ruling leaves doubt made determination basis state presented ruling dismissal procedural ground unrelated factual guilt innocence like question preindictment delay scott rather determination state failed prove case precedents evans acquitted question trial ruling wrong predicated upon clear misunderstanding facts state needed prove state law moment martin linen sanabria rumsey smalis smith instruct acquittal due insufficient evidence precludes retrial whether evaluation evidence correct martin linen regardless whether decision flowed incorrect antecedent ruling law evans acquittal product erroneous interpretatio governing legal principles cases error affects accuracy determination acquit essential character scott internal quotation marks omitted saw things differently identified constitutionally meaningful difference case previous decisions cases found involve evidentiary errors regarding proof needed establish factual element crimes issue still ultimately involved resolution regarding sufficiency factual elements charged offense mistakenly identifie extraneous element dismisse case solely basis however resolve even address ed factual element necessary establish offense result reasoned case terminates based error law unrelated defendant guilt innocence charged offense thus falls outside definition acquittal fail perceive difference case like previous ones involves antecedent legal error led acquittal state failed prove fact actually required prove consider rumsey trial sitting sentencer capital case involving murder committed robbery mistakenly held arizona statutory aggravating factor describing killings pecuniary gain limited murders hire accordingly found state failed prove killing pecuniary gain sentenced defendant life imprisonment state successfully appealed obtained death sentence remand held retrial penalty phase question double jeopardy relevant difference situation one rumsey trial error called misinterpretation misconstruction statute whereas error designated erroneous addition extraneous element charged offense emphasized labels control analysis context rather substance decision see smalis scott martin linen error rumsey easily characterized erroneous addition element statutory aggravating circumstance homicide conversely error viewed misinterpretation statute phrase building real property exclude far fine distinction meaningful reject notion defendant constitutional rights turn happenstance appellate chooses describe trial error echoing michigan state well dissent emphasize martin linen description acquittal resolution correct factual elements offense charged emphasis added see brief respondent see brief amicus curiae hereinafter brief see post observe double jeopardy clause protects twice placed jeopardy offence amdt cl note offense comprises constituent parts called elements facts must proved sustain conviction see dixon consequently argue actual element offense resolved said acquittal offense charged offense turn something concededly element offense brief evans trial ended without resolution even one actual element conclude acquittal argument reads martin linen narrowly inconsistent decisions since focus martin linen significance judicial acquittal fed rule crim proc district case evaluated government evidence determined legally insufficient sustain determination nonculpability enough make acquittal akin jury verdict holding depend upon defining elements offense explained supra scott confirms relevant distinction judicial determinations go criminal defendant lack criminal culpability hold defendant although criminally culpable may punished supposed procedural error culpability ultimate question guilt innocence touchstone whether particular elements resolved whether determination nonculpability legally correct internal quotation marks omitted perhaps inconsistent state argument burks held defendant raises insanity defense decides government ha failed come forward sufficient proof defendant capacity responsible criminal acts defendant acquitted decided criminal culpability ha established lack insanity element burks offense bank robbery use dangerous weapon see rather insanity affirmative defense criminal liability conclusion thus depended upon equating judicial acquittal order finding insufficient evidence culpability insufficient evidence particular element end case follows come trial judgment acquittal resolved question evans guilt innocence matter sufficiency evidence unrelated procedural grounds judgment however erroneous precludes reprosecution charge barred state appeal well sanabria iii state supported offers three reasons distinction drawn maintained none persuades us start state argues unless actual element offense resolved trial way know whether ruling acquittal rely upon label used wrongly allow form trial action control brief respondent disagree decision turns form trial action rather whether serve substantive purposes procedural ones scott trial announce midtrial defendant shall acquitted prejudiced preindictment delay double jeopardy clause pose barrier reprosecution notwithstanding acquittal label cf scott know trial acquitted evans incanted word acquit acted view prosecution failed prove case next state fear grounds acquittal untethered actual elements offense trial issue unreviewable order finding insufficient evidence convict reason prosecution failed prove structure burned blue brief respondent brief concern limit magnitude error yield acquittal response long held much see supra concern instead holding make easier courts insulate review acquittals granted form nullification see brief respondent reject premise presume contexts courts exercise duties good faith cf harrington richter slip finally state suggests evans induced trial error heard complain error corrected state wishes retry brief respondent cf recognized judgments acquittal result defense motions hold defendant waives double jeopardy protection whenever trial error favor midtrial motion leads acquittal undercut adversary assumption system criminal justice rests vitiate one fundamental rights established fifth amendment sanabria citation omitted true defendant persuades declare mistrial jeopardy continues retrial generally allowed see dinitz circumstances defendant consents disposition contemplates reprosecution whereas defendant moves acquittal see sanabria makes related argument contends evans asked resolve whether nondwelling status element offense jeopardy attached elected wait trial underway raise point claim double jeopardy violation brief government relies upon lee district dismissed indictment midtrial failed allege required intent element offense held retrial corrected indictment barred dismissal akin mistrial acquittal clear district separately denied defendant motion judgment acquittal explaining defendant proven guilty beyond reasonable doubt world acknowledging error indictment required dismissal defendant invited interrupt proceedings formalizing finding merits raising indictment issue late held principles governing defendant consent mistrial apply citing dinitz government suggests situation functionally similar identifying elements offense necessary step determining sufficiency charging document brief ignore fact trial actually rule sufficiency state proof sufficiency information filed lee demonstrates two need rise fall together even government correct evans challenged charging document legal theory used challenge sufficiency evidence matters made latter motion motion necessarily may made trial underway evans penalized requesting ruling merits state case michigan rules entitled whether also brought distinct procedural objection earlier beside point alternative state ask us reconsider past decisions brief respondent suggesting overruling cases since least fong foo brief suggesting overruling smith rumsey smalis declined revisit cases made similar request smalis see brief amicus curiae smalis pennsylvania pp decline first reason believe existing rules become unworkable justify overruling precedent payne tennessee distinction drawn scott stood test time expect courts continue little difficulty distinguishing rulings relate ultimate question guilt innocence serve purposes internal quotation marks omitted see dionisio collecting cases lafave israel king kerr criminal procedure ed second logic cases still holds question jury verdict acquittal precludes retrial thus bars appeal legal error may led acquittal see ball trial instructed jury must find burned structure dwelling order convict jury acquitted evans accordingly jury presumed follow instructions blueford arkansas slip quoting weeks angelone end matter premise fong foo holding follows trial instead exercises discretion direct jury return verdict acquittal jeopardy also terminates notwithstanding legal error jury returns acquittal martin linen conclusion unavoidable make difference whether employs formality directing jury return acquittal whether enters acquittal sanabria rumsey smalis smith merely apply fong foo martin linen tandem trial makes antecedent legal error fong foo grants judgment acquittal rather directing jury acquit martin linen result acquittal words way antecedent legal errors reviewable context judicial acquittals unless errors also reviewable give rise jury acquittals contrary settled understanding jury verdict acquittal unreviewable unless distinguish juries acquit pursuant instructions judicial acquittals notwithstanding purely formal distinction neither option become attractive time therefore reiterate contention double jeopardy clause must leave open way correcting legal errors odds rule bar attach preverdict acquittal patently wrong law smith finally state object rule denies prosecution full fair opportunity present evidence jury defendant reaps windfall trial unreviewable error brief respondent brief sovereigns hardly powerless prevent sort situation observed smith nothing obligates jurisdiction afford trial courts power grant midtrial acquittal least two disallow practice see rev stat state parfait la app cir many jurisdictions including federal system allow encourage courts defer consideration motion acquit jury returns verdict mitigates double jeopardy see fed rule crim proc cases trial interpretation relevant criminal statute likely prove dispositive see reason jurisdictions provide mandatory continuances expedited interlocutory appeals wished prevent misguided acquittals chosen vest courts power grant midtrial acquittals state must bear corresponding risk acquittals granted error hold evans trial ended acquittal trial ruled state failed produce sufficient evidence guilt double jeopardy clause thus bars retrial offense barred state appeal judgment michigan reversed alito dissenting lamar evans petitioner michigan writ certiorari michigan february justice alito dissenting holds double jeopardy clause bars petitioner retrial arson attorney managed convince judge terminate petitioner first trial prior verdict specious ground offense charged contains imaginary element prosecution prove decision makes sense consistent original meaning double jeopardy clause serve purposes prohibition double jeopardy contrary reasoning trial judge ruling acquittal cases consistently defined decision represents resolution correct factual elements offense charged smith massachusetts quoting martin linen supply emphasis added good reason deprives state michigan right one fair opportunity convict petitioner therefore respectfully dissent detroit police officers heard explosion burning house observed petitioner running away building gasoline officers pursued ultimately apprehended petitioner admitted burned house one living house time fire house question dwelling house petitioner charged comp laws burning dwelling offense punishable imprisonment years petitioner instead charged urning real property violation comp laws offense carries maximum penalty years imprisonment applies ny person wilfully maliciously burns building real property specified crime lesser included offense crime burning dwelling house necessary elements prove either offense except prove greater offense must shown building dwelling internal quotation marks omitted prove lesser offense however necessary prove building dwelling emphasis added close prosecution case petitioner attorney moved directed verdict ground prosecution required prove element charged offense building dwelling prosecution failed prove burned building dwelling house prosecutor responded arguing nothing charged offense requires proof building dwelling prosecutor requested moment pull statute consult supervisors trial judge denied prosecutor requests erroneously concluded prosecution required prove burned building dwelling determining state proved nonexistent element trial judge granted petitioner motion directed verdict entered order labeled cquittal app pet cert trial judge ruling plainly wrong appeal defense counsel even attempt defend correctness conceding judge wrongly added extraneous element statute client charged see also app michigan appeals agreed concession went hold trial judge ruling constitute acquittal double jeopardy purposes ruling represent resolution defendant favor factual element necessary criminal conviction internal quotation marks omitted michigan affirmed holding trial judge erroneously adds extra element charged offense subsequently determines prosecution prove extra element trial judge decision based defendant guilt innocence elements charged offense accordingly michigan concluded judge ruling case constitute acquittal purposes double jeopardy retrial barred ii reverses decision state holding supported neither original understanding prohibition double jeopardy reasons prohibition prohibition double jeopardy origin three pleas autrefois acquit autrefois convict pardon prevented retrial person previously acquitted convicted pardoned offense scott see crist bretz previously explained protection double jeopardy historically applied charges jury rendered verdict smith emphasis added result original understanding clause hardly matter dispute scott supra compel conclusion defendant acquitted double jeopardy purposes whenever judge issues preverdict ruling prosecution failed prove nonexistent element charged offense although decisions expanded double jeopardy protection beyond origins see smith supra acknowledging expansion protection double jeopardy crist supra nonetheless count significant result reaches today finds support relevant analogues lie core area protected double jeopardy clause see scott given far departed principles applied time founding least ensure decisions area serve underlying purposes constitutional prohibition double jeopardy see yet today decision fails advance purposes double jeopardy clause double jeopardy clause largely based deeply ingrained principle state resources power allowed make repeated attempts convict individual alleged offense thereby subjecting embarrassment expense ordeal compelling live continuing state anxiety insecurity well enhancing possibility even though innocent may found guilty yeager internal quotation marks omitted see also blueford arkansas slip martin linen allowing retrial circumstances present case result abuse prosecution afforded second opportunity persuade factfinder evidence satisfies actual elements offense instead trial judge ruling first trial based actual element charged offense retrial simply give prosecution one fair opportunity prove case allowing retrial case permit prosecutors make repeated attempts convict individual alleged offense yeager supra petitioner prosecutor sought terminate trial prior verdict thus contrary unexplained suggestion see ante case hardly presents specter state relentlessly pursuing defendant either found guilty least insisted issue guilt submitted first trier fact sattazahn pennsylvania quoting scott supra contrary case defense counsel fooled judge committing error provided client undeserved benefit termination trial defense obviously want run completion double jeopardy clause require defense receive even greater benefit protection provided acquittal repeatedly emphasized double jeopardy cases state interest receiving one complete opportunity convict violated laws sattazahn supra internal quotation marks omitted scott supra today decision deprives state michigan valuable right decision also flies face established understanding meaning acquittal double jeopardy purposes double jeopardy clause provides person shall subject offence twice put jeopardy life limb amdt emphasis added thus analysis focuses individual charged smith determine constitutes individual charged homes elements offense see dixon multiple punishment multiple prosecution contexts concluded two offenses defendant punished tried survive test double jeopardy bar applies consistent constitutional text focus offence thus elements defendant charged cases consistently defined acquittal decision represents resolution correct factual elements offense charged smith supra quoting martin linen supra see also scott supra defendant acquitted ruling judge whatever label actually represents resolution defendant favor correct factual elements offense charged internal quotation marks brackets omitted today effectively abandons definition acquittal indeed face repeated holdings acquittal double jeopardy purposes requires resolution correct factual elements offense charged smith supra martin linen supra see also scott supra declares touchstone whether particular elements resolved ante emphasis added instead proclaims dispositive question whether midtrial termination represented procedural dismissa substantive rulin ante reformulation double jeopardy law faithful precedents double jeopardy clause key question whether ruling procedural substantive whatever terms mean context whether ruling relates defendant factual guilt innocence respect offence see amdt thus elements charged see scott supra judge evaluates evidence determines prosecution proved facts legally sufficient satisfy actual elements charged offense ruling however labeled represents acquittal founded defendant factual innocence see martin linen judge manufactures additional element offense holds insufficient evidence prove extra element judge resolved defendant factual guilt innocence actual elements thus ruling matter judge calls acquit defendant offense charged acquittal occurs criminal trial terminated basis unrelated factual guilt innocence offense defendant accused scott case defendant deliberately choosing seek termination proceedings basis unrelated factual guilt innocence offense accused suffers injury cognizable double jeopardy clause government permitted appeal ruling trial favor defendant reasoning case defendant neither acquitted convicted successfully undertook persuade trial submit issue guilt innocence jury empaneled try iii contrary opinion decision case supported prior precedent three principal cases relies smalis pennsylvania smith arizona rumsey trial judges ruled prosecution failed introduce sufficient evidence prove one actual elements offenses question none cases none double jeopardy cases trial judge terminate prosecution verdict based element judge creation first two cases smalis smith involved garden variety preverdict acquittals rulings based ground prosecution failed introduce sufficient evidence prove one actual elements offense using conventional modern terminology rule federal rules criminal procedure explicitly labels rulings acquittal smalis judge close prosecution case chief granted demurrer respect certain charges ground evidence regarding charges legally insufficient support conviction state held ruling acquittal double jeopardy purposes based legal determination evidence sufficient rather factual finding rejected distinction see also sanabria smith involved similar situation one elements firearms offense defendant charged required proof gun barrel inches length trial judge dismissed charge verdict ground prosecution introduced sufficient evidence establish undisputed element remaining charges submitted jury however judge reversed ruling allowed charge go jury held however judge prior ruling constituted acquittal therefore barred defendant conviction offense thus smalis smith involved rulings different one issue earlier cases trial judges held evidence insufficient prove undisputed elements offenses question neither case judge invent new element final case rumsey differs smalis smith one particular like smalis smith rumsey involved ruling prosecution evidence insufficient prove element rumsey ruling predicated misconstruction element case defendant found guilty murder trial judge jury conducted separate sentencing hearing determined aggravating circumstances present particular judge found prosecution proved murder committed consideration receipt expectation receipt anything pecuniary value quoting rev stat ann supp judge reached conclusion incorrect view aggravating circumstance limited contract killings holding judge ruling constituted acquittal merits question whether death sentence appropriate noted ruling rested misconstruction statute defining pecuniary gain aggravating circumstance accordingly ruling based determination insufficient evidence prove real element based judicial invention extra element reason support nonsensical result reaches today may feel compelled reach result thinks unworkable draw distinction preverdict termination based trial judge misconstruction element offense preverdict termination based judge perception statute contains element actually nonexistent practical concern overblown may cases determination presents problems surely many cases determination quite easy present case perfect example real dispute trial judge ruling based nonexistent statutory element noted defense counsel conceded appeal judge wrongly added extraneous element statute client charged another good example provided state korsen idaho magistrate erroneously concluded offense criminal trespass idaho law requires showing defendant something justify property owner request defendant leave premises question magistrate korsen effectively created additional statutory element concluding prosecution presented insufficient evidence purported element see ibid holding double jeopardy bar retrial magistrate finding actually determine defendant favor essential elements crime trespass cases said trial judge simply misinterpret real element offense instead invented entirely new nonexistent element cases judge error particularly egregious permitting retrial egregious cases especially appropriate hold double jeopardy protection triggered judge erroneous preverdict ruling creates element thin air holds element satisfied therefore respectfully dissent footnotes comp laws burning dwelling house provides person wilfully maliciously burns dwelling house either occupied unoccupied contents thereof whether owned another building within curtilage dwelling house contents thereof shall guilty felony punishable imprisonment state prison years burning real property provides person wilfully maliciously burns building real property contents thereof specified next preceding section chapter property another shall guilty felony punishable imprisonment state prison years words pattern jury instructions incorrect state later revised see app compare case state korsen idaho conclusion maker carter state ark rejecting distinction state lynch holding double jeopardy barred retrial trial erroneously required extra element bullington missouri capital defendant acquitted death penalty end separate sentencing proceeding factfinder concludes prosecution failed prove required additional facts support sentence death thus rumsey trial initial judgment based findings sufficient establish legal entitlement life sentence amounts acquittal merits bars retrial appropriateness death penalty indeed possible trial thought articulating additional element statute criminalizes burning building real property specified previous section criminalizes burning dwelling house comp laws light statute phrasing trial interpreted building real property exclusive type property described although michigan courts explained term actually meant inclusive trial decision viewed given statutory building element unduly narrow construction limiting nondwellings trial rumsey gave provision unduly narrow construction limiting contract killings nevertheless accept parties michigan courts alternative characterization trial error addition extraneous element observation simply underscores malleable distinction adopted michigan defended state belies dissent suggestion post opinion alito drawing distinction quite easy basis trial ruling subject real dispute account burks posits used brief offense encompass legally recognized defenses negate culpability brief dissent hold used opinion offense include legally recognized affirmative defenses negate culpability post rather adopt novel definition word element mean elements affirmative defenses promptly limit novel definition circumstances prefer read burks says issue whether question criminal culpability resolved dissent says defense counsel fooled judge post surely charge fair nothing suggests counsel exceeded permissible bounds zealous advocacy behalf client counsel presented colorable legal argument marshaled persuasive authority michigan criminal jury instructions time supported position see supra dissent true gripe may cases well rather result explained follows inevitably see post noting far cases departed principles applied time founding compare post permitting retrial egregious cases especially appropriate fong foo per curiam according finality even acquittals based upon egregiously erroneous foundation grants motion acquit jury convicted double jeopardy barrier appeal government acquittal reversal result reinstatement jury verdict guilt new trial wilson prosecutor twice asked recess review michigan statutes discuss question supervisor trial refusal matter state procedure address bear double jeopardy consequences acquittal followed footnotes see also crist fifth amendment guarantee double jeopardy derived english common law followed relatively simple rule defendant put jeopardy conviction acquittal complete trial clear early years national history constitutional guarantee double jeopardy considered equally limited scope story commentaries constitution meaning double jeopardy clause party shall tried second time offence convicted acquitted offence charged verdict jury judgment passed thereon mean shall tried offence second time jury discharged without giving verdict emphasis added hale pleas crown must acquittal upon trial either verdict battle culpability offense negated proof affirmative defense held ruling prosecution submit sufficient evidence rebut affirmative defense constitutes acquittal double jeopardy purposes see burks scott thus used opinion elements offense include legally recognized affirmative defenses negate culpability