jorn argued january decided january appellee tried federal district information charging willfully assisting preparation fraudulent income tax returns following impaneling jury prosecutor called stand taxpayer appellee allegedly aided preparing return defense counsel suggestion judge warned witness constitutional rights witness expressed willingness testify stating warned rights first contacted internal revenue service irs judge refused permit testify consulted attorney indicating believe witness warned irs although prosecutor advised judge remaining witnesses warned rights irs upon initial contact judge stated warnings probably inadequate thereupon discharged jury aborted trial witnesses consult attorneys case set retrial another jury appellee pretrial motion judge dismissed information ground former jeopardy government filed direct appeal held judgment affirmed pp affirmed justice harlan joined chief justice justice douglas justice marshall concluded sustainment motion bar based plea former jeopardy appealable government long motion sustained prior impaneling jury subsequent proceeding motion made cf sisson pp fifth amendment double jeopardy clause represents constitutional policy finality defendant benefit federal criminal proceedings pp although recognized defendant reprosecuted successful appeal double jeopardy policies confined prevention prosecutorial judicial overreaching pp defendant option case considered first jury judge acting without defendant consent aborts trial defendant deprived valued right trial completed particular tribunal absence defendant motion mistrial doctrine manifest necessity perez wheat commands trial judges foreclose defendant option scrupulous exercise judicial discretion warrants conclusion justice served continuation trial pp judge must temper decision whether abort trial considering importance defendant able finally conclude confrontation society verdict tribunal might believe favorable trial judge abused discretion accordingly appellee reprosecution violate double jeopardy clause pp justice black justice brennan concluded lacks jurisdiction appeal trial judge action amounted acquittal join judgment view decision majority reach merits pp stewart joined white blackmun agree jurisdiction appeal concluded harlan see point syllabus supra richard stone argued cause reargument louis claiborne argued cause original argument stone brief reargument solicitor general griswold assistant attorney general walters brief original argument solicitor general griswold assistant attorney general walters peter strauss joseph howard denis morrill appointment reargued cause filed briefs appellee justice harlan announced judgment opinion joined chief justice justice douglas justice marshall government directly appeals order district district utah dismissing ground former jeopardy information charging willfully assisting preparation fraudulent income tax returns violation appellee originally charged february counts violating brought trial chief judge ritter august jury chosen sworn counts dismissed government motion trial commenced government calling first witness internal revenue service agent order put evidence remaining allegedly fraudulent income tax returns defendant charged helping prepare trial judge suggestion exhibits stipulated introduced evidence without objection government five remaining witnesses taxpayers defendant allegedly aided preparation returns first witnesses called prior commencement direct examination defense counsel suggested witnesses warned constitutional rights trial agreed proceeded careful detail spell witness right say anything might used subsequent criminal prosecution right event prosecution represented attorney first witness expressed willingness testify stated warned constitutional rights internal revenue service first contacted trial judge indicated however believe witness given warning time first contacted irs refused permit testify consulted attorney trial judge asked prosecuting attorney remaining four witnesses similarly situated prosecutor responded warned rights irs upon initial contact judge expressing view warnings might given probably inadequate proceeded discharge jury called taxpayers informed constitutional rights considerable dangers unwittingly making damaging admissions factual circumstances finally aborted trial witnesses consult attorneys case set retrial another jury pretrial motion defendant judge ritter dismissed information ground former jeopardy government filed direct appeal noted probable jurisdiction case argued term thereafter set reargument present term appellee contends threshold decision sisson followed noting probable jurisdiction case forecloses appeal government provisions prior recent amendment question fully briefed argued reargument statute provided relevant part appeal government direct rom decision judgment sustaining motion bar defendant put jeopardy appellee concedes indeed must prior rulings plea former jeopardy constituted motion bar within meaning statute issue whether appellee put jeopardy virtue impaneling jury first proceeding declaration mistrial sisson supra opinion discussing applicability provision government direct appeal trial judge actions concluded inter alia put jeopardy language applied whenever jury impaneled even defendant might constitutionally retried double jeopardy provisions fifth amendment jury first proceeding impaneled mistrial ruling appellee motion dismiss grounds former jeopardy made prior impaneling second jury government contends impaneling jury must understood apply jury proceeding plea former jeopardy offered bar rather jury whose impaneling first instance essential sustain plea merits appellee contends construction put statute sisson opinion requires conclusion government may appeal jury prior proceeding offense question impaneled think government better argument opinion sisson dealt problem presented trial judge order purporting arrest entry judgment guilty verdict returned jury whose impaneling claimed constitute jeopardy within meaning provision conclusion jeopardy attached impaneling jury proceeding rested view congress concerned granting government appeal rights certain classes cases avoid subjecting defendant second trial first trial terminated manner favorable defendant either jury verdict judicial action see sisson supra compromise origins criminal appeals act see reflected concern concern important consideration supporting canon strict construction traditionally applied statute see mistrial situation judicial ruling chronologically analogous sisson facts declaration mistrial first jury impaneled obviously government appealed judge ritter original declaration mistrial since mistrial ruling explicitly contemplates reprosecution defendant nonappealability judicial action fits congressional action excluding pleas abatement class cases warranting appellate review nonappealable status rulings sort fully explainable terms policy disfavoring appeals interlocutory rulings see discussion supra follow nonappealability rulings essentially interlocutory insofar expressly contemplate resumption prosecution congress intended foreclose governmental appeal sustaining later motion bar trial judge conclusion constitutional double jeopardy policies require earlier mistrial ruling accorded effect barring reprosecution indeed recall pleas former jeopardy paradigm illustrations motions bar common law see supra seems much likely congressional decision allow governmental appeals judge decision sustaining motion bar intended permit review later judicial action possibly premised erroneous theories concerning constitutional effects attaching earlier interlocutory ruling consistently opinion sisson sustaining motion bar based plea former jeopardy appealable long motion bar sustained prior impaneling jury subsequent proceeding since judge ritter case dismissed information appellee plea former jeopardy prior impaneling second jury conclude decision directly appealable government motion bar defendant put jeopardy within meaning applicable statute hence proceed merits appellee claim reprosecution declaration mistrial earlier proceeding violate fifth amendment rights ii fifth amendment prohibition placing defendant twice jeopardy represents constitutional policy finality defendant benefit federal criminal proceedings power government subject individual repeated prosecutions offense cut deeply framework procedural protections constitution establishes conduct criminal trial society awareness heavy personal strain criminal trial represents individual defendant manifested willingness limit government single criminal proceeding vindicate vital interest enforcement criminal laws considerations expressed green noted policy underlying provision 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 considerations led conclude defendant placed jeopardy criminal proceeding defendant put trial trier facts whether trier jury judge see green supra wade hunter also true criminal trial even best circumstances complicated affair manage proceedings dependent first instance elementary sort considerations health various witnesses parties attorneys jurors must prepared arrive set times one adds scheduling problems arising case overloads sixth amendment requirement single trial double jeopardy provision restricts government conducted speedily becomes readily apparent mechanical rule prohibiting retrial whenever circumstances compel discharge jury without defendant consent high price pay added assurance personal security freedom governmental harassment mechanical rule provide noted wade hunter supra defendant valued right trial completed particular tribunal must circumstances subordinated public interest fair trials designed end judgments thus conclusion jeopardy attaches trial commences expresses judgment constitutional policies underpinning fifth amendment guarantee implicated point proceedings question remains however circumstances retrial precluded initial proceedings aborted prior verdict without defendant consent dealing question part explicitly declined invitation litigants formulate rules based categories circumstances permit preclude retrial thus perez wheat held defendant capital case might retried trial judge without defendant consent discharged jury reported unable agree justice story opinion perez expressed following thoughts problem reprosecution mistrial declared without consent defendant think cases nature law invested courts justice authority discharge jury giving verdict whenever opinion taking circumstances consideration manifest necessity act ends public justice otherwise defeated exercise sound discretion subject impossible define circumstances render proper interfere sure power used greatest caution urgent circumstances plain obvious causes capital cases especially courts extremely careful interfere chances life favour prisoner right order discharge security public faithful sound conscientious exercise discretion rests cases upon responsibility judges oaths office recent case gori adhering main perez theme manifest necessity standard appellate review suggest possibility variation theme according determination appellate party case beneficiary mistrial ruling gori called upon review action trial judge discharging jury appeared judge prosecution questioning witness might lead introduction evidence prior crimes upheld reprosecution mistrial opinion applying principle perez appears tie judgment abuse discretion circumstances fact judge acting sole interest defendant see also dissenting opinion justice douglas instant case government relying principally gori contends even conclude trial judge abused discretion reprosecution permitted judge ruling benefited defendant also clearly compelled prosecutorial conduct aimed triggering mistrial order get another day judgment benefited mistrial ruling turns appellate conclusion concerning party trial judge point personal motivation trying protect prejudice seems reasonably clear trial record judge insistence stopping trial witnesses properly warned motivated desire protect witnesses rather defendant government appears view question benefit turning appellate post hoc assessment party fact aided hypothetical event witnesses called stand consulting attorneys course conduct best serve insulate personally criminal civil liability fraudulent tax returns conception benefit however involves nothing exercise pure speculation sum unable conclude record case mistrial made sole interest defendant see gori supra think limitation principle based appellate assessment side benefited mistrial ruling adequately satisfy policies underpinning double jeopardy provision reprosecution mistrial unnecessarily declared trial obviously subjects defendant personal strain insecurity regardless motivation underlying trial judge action government contends however policies evinced double jeopardy provision reach sort injury rather unnecessarily inflicted second trial must government view appear result mistrial declaration unfairly aids prosecution harasses defense govt brief certainly clear beyond question double jeopardy clause guarantee defendant government prepared circumstances vindicate social interest law enforcement vehicle single proceeding given offense thus example reprosecution offense permitted defendant wins reversal appeal conviction ball see green determination allow reprosecution circumstances reflects judgment defendant double jeopardy interests however defined go far compel society mobilize decisionmaking resources prepared assure defendant single proceeding free harmful governmental judicial error also clear recognition defendant reprosecuted offense successful appeal compel conclusion double jeopardy policies confined prevention prosecutorial judicial overreaching crucial difference reprosecution appeal defendant reprosecution sua sponte judicial mistrial declaration first situation defendant deprived option go first jury perhaps end dispute acquittal hand judge acting without defendant consent aborts proceeding defendant deprived valued right trial completed particular tribunal see wade hunter right go particular tribunal valued independent threat conduct judge prosecutor defendant significant interest decision whether take case jury circumstances occur might though warrant declaration mistrial thus circumstances develop attributable prosecutorial judicial overreaching motion defendant mistrial ordinarily assumed remove barrier reprosecution even defendant motion necessitated prosecutorial judicial error absence motion perez doctrine manifest necessity stands command trial judges foreclose defendant option scrupulous exercise judicial discretion leads conclusion ends public justice served continuation proceedings see perez conscious refusal channel exercise discretion according rules based categories circumstances see wade hunter reflects elusive nature problem presented judicial action foreclosing defendant going jury discretion must still exercised unquestionably important factor considered need hold litigants sides standards responsible professional conduct clash adversary criminal process yet evolve rules based source particular problem giving rise question whether mistrial declared even circumstances problem reflects error part one counsel trial judge must still take care assure situation warrants action part foreclosing defendant potentially favorable judgment tribunal sum counsel sides perform imperfect world area rules based either source problem intended beneficiary ruling disserve vital competing interests government defendant trial judge must recognize lack preparedness government continue trial directly implicates policies underpinning double jeopardy provision speedy trial guarantee cf downum alternatively judge must bear mind potential risks abuse defendant society unwillingness unnecessarily subject repeated prosecutions yet final analysis judge must always temper decision whether abort trial considering importance defendant able conclude confrontation society verdict tribunal might believe favorably disposed fate iii applying considerations record case must conclude trial judge abused discretion discharging jury despite assurances first witness prosecuting attorney five taxpayers involved litigation warned constitutional rights judge refused permit testify first expressing disbelief warned expressing views warnings might given inadequate app probing assumed inadequacy warnings might given prosecutor asked really intended try case willfully aiding preparation fraudulent returns theory incriminate taxpayers prosecutor started answer intended judge cut midstream immediately discharged jury app apparent record consideration given possibility trial continuance indeed trial judge acted abruptly discharging jury prosecutor disposed suggest continuance defendant object discharge jury opportunity one examines circumstances surrounding discharge jury seems abundantly apparent trial judge made effort exercise sound discretion assure taking circumstances account manifest necessity sua sponte declaration mistrial perez therefore must conclude circumstances case appellee reprosecution violate double jeopardy provision fifth amendment affirmed footnotes equivalent motion bar used raise defenses prior acquittal prior conviction pardon see murdock whether provision construed broadly reach plea effect preventing prosecutions see mersky brennan concurring narrowly reach pleas nature confession avoidance see stewart dissenting appellee plea former jeopardy based prior declaration mistrial included cf blue see generally sisson portion opinion sisson discussion joined four members justice white dissenting opinion contended jeopardy language applies preclude governmental appeal defendant reprosecution barred constitution government relies part tateo oppenheimer sustaining jurisdiction review trial action granting pretrial motion dismiss double jeopardy grounds prior proceeding ended mistrial tateo however jurisdiction neither raised parties considered therefore little significance jurisdiction point oppenheimer motion bar second proceeding rested earlier pretrial motion based statute limitations theory second plea res judicata appellee points rule federal rules criminal procedure permits defendant raise defense former jeopardy motion impaneling jury see notes advisory committee moore federal practice ed thus suggested defendant may deprive government appeal simply delaying motion dismiss jury impaneled problem course inherent structure criminal appeals act prior amendment example defendant rule may also delay statute limitations plea impaneling jury see thereby depriving government appeal soon passage original act attorney general recognized problem proposed act amended require counsel defendant raise argue questions jeopardy attaches see sisson supra recently enacted amendment criminal appeals act undertakes deal problem allowing government appeal appeals decision judgment order district dismissing indictment information one counts except appeal shall lie double jeopardy clause constitution prohibits prosecution omnibus crime control act stat january however amendment applicable criminal case begun district effective date amendment see also pp clear record case judge ritter action two members suggest classified acquittal purposes jurisdiction appeal first judge ritter action original trial clearly contemplated reprosecution defendant witnesses consulted attorneys see app justice stewart dissent post judge ritter subsequent action dismissing information simply put ground defendant plea former jeopardy without explanation app parties put question former jeopardy judge ritter exclusively terms line cases concerning reprosecutability mistrial declarations without defendant consent see app contain entire proceedings judge ritter course noted sisson supra trial judge characterization action control classification action purposes appellate jurisdiction sisson goes articulate criterion acquittal purposes assessing jurisdiction review trial judge disposition acquittal legal determination basis facts adduced trial relating general issue case sisson supra record case utterly devoid indication reliance judge ritter facts relating general issue case thereby surely distinguishing case sisson one think reasoning sisson compelling conclusion whatever else judge ritter may done acquit defendant relevant sense two terms ago double jeopardy provision fifth amendment made directly applicable see benton maryland see also annotation double jeopardy mistrial sigler double jeopardy see annotation supra sigler supra think nothing said tateo properly taken indicating contrary view even though defendant guilty plea aborted trial subsequently held coerced judicial action defendant nonetheless foreclosed option go jury chose thereafter rely proceedings redress wrong done judge words question voluntariness purposes assessing validity plea guilty whether offered trial must distinguished question voluntariness purposes assessing reprosecutability double jeopardy clause conversely defendant mistrial motion necessitated judicial prosecutorial impropriety designed avoid acquittal reprosecution might well barred cf tateo supra supra chief justice burger concurring join plurality opinion judgment without reluctance however since case represents plain frustration right case tried attributable solely conduct trial judge accused brought erroneous mistrial ruling different case record shows nothing take appellee claims outside classic mold twice placed jeopardy offense justice black justice brennan believe lacks jurisdiction appeal action trial judge amounted acquittal appellee therefore discretion left trial judge put appellee jeopardy however view decision majority reach merits join judgment justice stewart justice white justice blackmun join dissenting plurality opinion today says whenever trial judge criminal case abused discretion declaring mistrial motion constitutional guarantee double jeopardy categorically operates forestall trial case merits agree district judge decision declare mistrial case based belief prosecution witnesses testify submitted false income tax returns prepared defendant adequately warned might incur criminal liability testimony judge apparently intended simply postpone case witnesses fully apprised constitutional rights second trial scheduled new jury however new trial date defendant filed motion dismiss information ground former jeopardy judge granted motion government appealed directly course common ground many circumstances trial judge may discharge jury order new trial without encountering double jeopardy problems one example judge acts instance defendant see tateo another jury reach verdict trial judge may proceed initiative even active objection defendant declare mistrial perez wheat cf simmons wade hunter hand situations circumstances mistrial declared may bar future prosecution one example judge exercises authority help prosecution trial case going badly affording another favorable opportunity convict accused gori suppose whether misconduct kind occurs instance prosecutor trial judge sole initiative question guarantee double jeopardy make another trial impermissible present case fall neatly conventional categories request mistrial defense counsel although suggestion witnesses warned constitutional rights may triggered course events followed case certainly analogized hung jury conversely mistrial requested prosecutor slightest indication desired occur suggestion situation involving harassment attempt judge prosecutor enhance possibility conviction second trial plurality opinion purports resolve matter adopting rule abuse discretion trial judge standard said derive statement leading case perez supra think cases nature law invested courts justice authority discharge jury giving verdict whenever opinion taking circumstances consideration manifest necessity act ends public justice otherwise defeated exercise sound discretion subject impossible define circumstances render proper interfere sure power used greatest caution urgent circumstances plain obvious causes right order discharge security public faithful sound conscientious exercise discretion rests cases upon responsibility judges oaths office case trial judge discharged jury first day trial taking action apparently forestall prejudicial error inferring prosecuting attorney line questioning presaged inquiry calculated inform jury crimes accused appeals held declaration mistrial circumstances prevent new trial merits defendant way harmed brief trial indeed revealed prosecution entire case thus position start anew clean slate possibility prejudice eliminated foreknowledge case situation quite unlike troublesome problems found various cases prosecution desires strengthen case new start otherwise provokes declaration mistrial acted prejudice accused accused actually subject two trials essentially offense hand defendant receive absolution crime later proven quite completely judge acted hastily interest injustice public particular case disastrous precedent future suffice unwilling clearly appears mistrial granted sole interest defendant hold necessary consequence bar retrial hark back formalistic artificialities seventeenth century criminal procedure confine federal trial courts compelling navigate narrow compass scylla charybdis thus make unduly hesitant conscientiously exercise sensitive judgment according lights immediate exigencies trial effective protection criminal accused applying considerations record case seems clear trial merits violate constitutional guarantee quite true plurality opinion insists mistrial declared benefit witnesses rather sole interest defendant except inconvenience delay always caused mistrial judge ruling possibly injured defendant witnesses heeded trial judge advice least possible defendant position might substantially improved refusal testify upon grounds guarantee compulsory line questioning resulted mistrial may initiated defense counsel result mind course showing intent part either prosecutor judge harass defendant enhance chances conviction second trial gori defense given complete preview government case even assuming trial judge action plainly improper standard good trial practice circumstances mistrial declared involve abuse kind invoke constitutional guarantee double jeopardy respectfully dissent judgment trial judge stated case vacated setting vacated afternoon calendared calendared going witnesses talk permit testify app agree jurisdiction appeal reasons set part plurality opinion downum contrary plurality opinion today points case recognized lack preparedness government continue trial directly implicates policies underpinning double jeopardy provision speedy trial guarantee ante failure prosecution go forward case expeditious orderly manner quite different even serious error trial procedure presiding judge course well settled jury verdict reversed appeal error trial judge new trial permitted forman bryan tateo held retrial barred double jeopardy clause first trial terminated plea guilty coerced clearly improper statements trial judge proceedings