MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict.
Petitioner Burks was tried in the United States District Court for the crime of robbing a federally insured bank by use of a dangerous weapon, a violation of 18 U. S. C. § 2113 (d) (1976 ed.). Burks' principal defense was insanity. To prove this
Before the case was submitted to the jury, the court denied a motion for a judgment of acquittal. The jury found Burks guilty as charged. Thereafter, he filed a timely motion for a new trial, maintaining, among other things, that "[t]he evidence was insufficient to support the verdict." The motion was denied by the District Court, which concluded that petitioner's challenge to the sufficiency of the evidence was "utterly without merit."
On appeal petitioner narrowed the issues by admitting the affirmative factual elements of the charge against him, leaving only his claim concerning criminal responsibility to be resolved. With respect to this point, the Court of Appeals agreed with petitioner's claim that the evidence was insufficient to support the verdict and reversed his conviction. 547 F.2d 968 (CA6 1976). The court began by noting that "the government has the burden of proving sanity [beyond a reasonable doubt] once a prima facie defense of insanity has been raised."
At this point, the Court of Appeals, rather than terminating the case against petitioner, remanded to the District Court "for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered." Ibid. Indicating that the District Court should choose the appropriate course "from a balancing of the equities," ibid., the court explicitly adopted the procedures utilized by the Fifth Circuit in United States v. Bass, 490 F.2d 846, 852-853 (1974), "as a guide" to be used on remand:
The United States has not cross-petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect to the claim of insanity. Accordingly, that issue is not open for review here. Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.
Petitioner's argument is straightforward. He contends that the Court of Appeals' holding was nothing more or less than a decision that the District Court had erred by not granting his motion for a judgment of acquittal. By implication, he argues, the appellate reversal was the operative equivalent of a district court's judgment of acquittal, entered either before or after verdict. Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the
The position advanced by petitioner has not been embraced by our prior holdings. Indeed, as the Court of Appeals here recognized, Bryan v. United States, supra, would appear to be contrary. In Bryan the defendant was convicted in the District Court for evasion of federal income tax laws. Bryan had moved for a judgment of acquittal both at the close of the Government's case and when all of the evidence had been presented. After the verdict was returned he renewed these motions, but asked—in the alternative—for a new trial. These motions were all denied. The Court of Appeals reversed the conviction on the specific ground that the evidence was insufficient to sustain the verdict and remanded the case for a new trial. Certiorari was then granted to determine whether the Court of Appeals had properly ordered a new trial, or whether it should have entered a judgment of acquittal. In affirming the Court of Appeals, this Court decided, first, that the Court of Appeals had statutory authority, under 28 U. S. C. § 2106, to direct a new trial. But Bryan had also maintained that notwithstanding § 2106 a retrial was prohibited by the Double Jeopardy Clause, a contention which was dismissed in one paragraph:
Concurring in the Sapir judgment, which directed the dismissal of the indictment, Mr. Justice Douglas indicated his basis for reversal:
Up to this point, Mr. Justice Douglas' explication is, of course, precisely that urged on us by petitioner, and presumably would have been applicable to Bryan as well. But the concurrence in Sapir then undertook to distinguish Bryan:
The Yates decision thus paralleled Sapir's concurrence in the sense that both would allow a new trial to correct evidentiary insufficiency if the defendant had requested such relief—even as an alternative to a motion for acquittal. But the language in Yates was also susceptible of a broader reading, namely, that appellate courts have full authority to order a new trial as a remedy for evidentiary insufficiency, even when the defendant has moved only for a judgment of acquittal.
Three years later in Forman v. United States, 361 U.S. 416 (1960), the Court again treated these questions. There a conviction was reversed by the Court of Appeals due to an improper instruction to the jury, i. e., trial error, as opposed to evidentiary insufficiency. Although the petitioner in Forman had moved both for a new trial and judgment of acquittal, he argued that a new trial would not be appropriate relief since he had requested a judgment of acquittal with respect to the specific trial error on which this Court agreed with the Court of Appeals. Without distinguishing between a reversal due to trial error and reversal resulting solely from evidentiary
Until this stage in the Forman opinion the Court seemed to adopt the more expansive implication of Yates, i. e., that an appellate court's choice of remedies for an unfair conviction— whether reversal be compelled by failure of proof or trial error—would not turn on the relief requested by the defendant. The Forman decision, however, was not entirely free from ambiguity. In the course of meeting the petitioner's argument that Sapir demanded a judgment of acquittal, the Court noted two differences between those cases. In the first place, "the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence"; in Forman, however, "`[t]he jury was simply not properly instructed.'" 361 U. S., at 426. In addition, "Sapir made no motion for a new trial in the District Court, while here petitioner [Forman] filed such a motion. That was a decisive factor in Sapir's case." Ibid. (Emphasis added.)
The Court's holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity. Bryan seemingly stood for the proposition that an appellate court could order whatever relief was "appropriate"
After the Bryan-Forman line of decisions at least one proposition emerged: A defendant who requests a new trial as one avenue of relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial. Given that petitioner here appealed from a denial of a motion for a new trial—although he had moved for acquittal during trial—our prior cases would seem to indicate that the Court of Appeals had power to remand on the terms it ordered. To reach a different result will require a departure from those holdings.
It is unquestionably true that the Court of Appeals' decision "represente[d] a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). By deciding that the Government had failed to come forward with sufficient proof of petitioner's capacity to be responsible for criminal acts, that court was clearly saying that Burks' criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.
Reconsideration must begin with Bryan v. United States. The brief and somewhat cursory examination of the double jeopardy issue there was limited to stating that "`where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial,'" 338 U. S., at 560, citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462 (1947), and Trono v. United States, 199 U.S. 521, 533-534 (1905). These two cited authorities, which represent the totality of the Court's analysis, add little, if anything, toward resolving the double jeopardy problem presented by Bryan. Resweber involved facts completely unrelated to evidentiary insufficiency. There, in what were admittedly "unusual circumstances," 329 U. S., at 461, the Court decided that a State would be allowed another chance to carry out the execution of one properly convicted and under sentence of death after an initial attempted electrocution failed due to some mechanical difficulty. In passing, the opinion stated: "But where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial. United States v. Ball, 163 U.S. 662, 672." Id., at 462. Trono made a similar comment, citing Ball for the proposition that "if the judgment of conviction be reversed on [the defendant's] own appeal, he cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense for which he was convicted." 199 U. S., at 533-534.
Ball came before the Court twice, the first occasion being on writ of error from federal convictions for murder. On this initial review, those defendants who had been found guilty obtained a reversal of their convictions due to a fatally defective indictment. On remand after appeal, the trial court dismissed the flawed indictment and proceeded to retry the defendants on a new indictment. They were again convicted and the defendants came once more to this Court, arguing that their second trial was barred because of former jeopardy. The Court rejected this plea in a brief statement:
We have no doubt that Ball was correct in allowing a new trial to rectify trial error:
See United States v. Wilson, 420 U.S. 332, 341 n. 9 (1975); Forman, 361 U. S., at 425. As we have seen in Part II, supra, the cases which have arisen since Ball generally do not distinguish
Various rationales have been advanced to support the policy of allowing retrial to correct trial error,
See Wilson, supra, at 343-344, n. 11; Wade v. Hunter, 336 U.S. 684, 688-689 (1949). In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After
The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.
The importance of a reversal on grounds of evidentiary insufficiency for purposes of inquiry under the Double Jeopardy Clause is underscored by the fact that a federal court's role in deciding whether a case should be considered by the jury is quite limited. Even the trial court, which has heard the testimony of witnesses firsthand, is not to weigh the evidence or assess the credibility of witnesses when it judges the merits of a motion for acquittal. See United States v. Wolfenbarger, 426 F.2d 992, 994 (CA6 1970); United States v. Nelson, 419 F.2d 1237, 1241 (CA9 1969); McClard v. United States, 386 F.2d 495, 497 (CA8 1968); Curley v. United States, 81 U. S. App. D. C. 389, 392, 160 F.2d 229, 232-233, cert. denied, 331 U.S. 837 (1947). The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury's finding the defendant guilty beyond a reasonable doubt. See C. Wright, Federal Practice and
In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person "waives" his right to a judgment of acquittal by moving for a new trial. See Green v. United States, 355 U. S., at 191-198. Moreover, as Forman, 361 U. S., at 425, has indicated, an appellate court is authorized by § 2106 to "go beyond the particular relief sought" in order to provide that relief which
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
Reversed and remanded.
"The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances."
"A man who has been tried, convicted and attainted on an insufficient indictment, or on a record erroneous in any other part, is in so much jeopardy literally that punishment may be lawfully inflicted on him, unless the attainder be reversed in a Court of Error; and yet when that is done, he may certainly be indicted again for the same offense, and the rule would be held to apply, that he had never been in jeopardy under the former indictment." Id., at 546, 175 Eng. Rep., at 520.
"There may be cases where the facts adduced as to the existence and impact of an accused's mental condition may be so overwhelming as to require a judge to conclude that no reasonable juror could entertain a reasonable doubt. But in view of the complicated nature of the decision to be made—intertwining moral, legal, and medical judgments—it will require an unusually strong showing to induce us to reverse a conviction because the judge left the critical issue of criminal responsibility with the jury." King v. United States, 125 U. S. App. D. C. 318, 324, 372 F.2d 383, 389 (1967) (footnote omitted).
MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.