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cause it "is granted on the ground . . . that the defendant simply cannot be convicted of the offense charged," Lee, 432 U. S., at 30. Rather, 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." Martin Linen, supra, at 571. Where the court, before the jury returns a verdict, enters a judgment of acquittal pursuant to Fed. Rule Crim. Proc. 29, appeal will be barred only when "it is plain that the District Court . . . evaluated the Government's evidence and determined that it was legally insufficient to sustain a conviction." 430 U. S., at 572.o

Our opinion in Burks necessarily holds that there has been a "failure of proof," ante, at 16, requiring an acquittal when the Government does not submit sufficient evidence to rebut a defendant's essentially factual defense of insanity, though it may otherwise be entitled to have its case submitted to the jury. The defense of insanity, like the defense of entrapment, arises from "the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense," United States v. Russell, 411 U. S. 423, 435 (1973), where other facts established to the satisfaction of the trier of fact provide a legally

In Jenkins, which was a bench trial, we had difficulty, as did the Court of Appeals in that case, in characterizing the precise import of the District Court's order dismissing the indictment. The analysis that governed our disposition turned not on whether the defendant had been acquitted but on whether the proceeding had terminated "in the defendant's favor," 420 U. S., at 365 n. 7, and whether "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand," id., at 370. We thus had no occasion to determine whether the District Court simply had made "an erroneous interpretation of the controlling law," id., at 365 n. 7, or whether it had "resolved [controlling] issues of fact in favor of the respondent," id., at 367; see id., at 362 n. 3.

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adequate justification for otherwise criminal acts.10 Such a factual finding does "necessarily establish the criminal defendant's lack of criminal culpability," post, at 106 (BRENNAN, J., dissenting), under the existing law; the fact that "the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles," ibid., affects the accuracy of that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.1

11

We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings

10 The defense of insanity in a federal criminal prosecution was first recognized by this Court in Davis v. United States, 160 U. S. 469 (1895). Mr. Justice Harlan's opinion for the Court construed federal law in light of the larger body of common law in other jurisdictions, and concluded: "One who takes human life cannot be said to be actuated by malice aforethought, or to have deliberately intended to take life, or to have 'a wicked, depraved, and malignant heart,' or a heart 'regardless of society duty and fatally bent on mischief' unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such an act." Id., at 485.

While Congress has never made explicit statutory provision for this affirmative defense or any other, it has recognized the validity of the defense by regulating its use in federal prosecutions. Fed. Rule Crim. Proc. 12.2 (a).

11 While an acquittal on the merits by the trier of fact "can never represent a determination that the criminal defendant is innocent in any absolute sense," post, at 107 (BRENNAN, J., dissenting), a defendant who has been released by a court for reasons required by the Constitution or laws, but which are unrelated to factual guilt or innocence, has not been determined to be innocent in any sense of that word, absolute or otherwise. In other circumstances, this Court has had no difficulty in distinguishing between those rulings which relate to "the ultimate question of guilt or innocence" and those which serve other purposes. Stone v. Powell 428 U. S. 465, 490 (1976). We reject the contrary implication of the dissent that this Court or other courts are incapable of distinguishing between the latter and the former.

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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. We do not thereby adopt the doctrine of "waiver" of double jeopardy rejected in Green.12 Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. In Green the question of the defendant's factual guilt or innocence of murder in the first degree was actually submitted to the jury as a trier of fact; in the present case, respondent successfully avoided such a submission of the first count of the indictment by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus 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.

The reason for treating a trial aborted on the initiative of the trial judge differently from a trial verdict reversed on appeal, for purposes of double jeopardy, is thus described in Jorn, 400 U. S., at 484 (opinion of Harlan, J.):

"[I]n the [second] situation the defendant has not been deprived of his option to go to the first jury, and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant's consent, aborts the proceeding, the defendant has

12 The original jury in that case had found the defendant guilty of seconddegree murder, but did not find him guilty of first-degree murder. The Court held that his appeal did not waive his objection to a second prosecution for first-degree murder, but it was careful to reaffirm the holding of United States v. Ball, 163 U. S. 662 (1896), that "a defendant can be tried a second time for an offense when his prior conviction for that same offense [has] been set aside on appeal." 355 U. S., at 189.

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been deprived of his 'valued right to have his trial completed by a particular tribunal.'

We think the same reasoning applies in pari passu where the defendant, instead of obtaining a reversal of his conviction on appeal, obtains the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence. He has not been "deprived" of his valued right to go to the first jury; only the public has been deprived of its valued right to "one complete opportunity to convict those who have violated its laws." Arizona v. Washington, 434 U. S., at 509. No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in a manner favorable to the defendant."

It is obvious from what we have said that we believe we pressed too far in Jenkins the concept of the "defendant's valued right to have his trial completed by a particular tri

18 We should point out that it is entirely possible for a trial court to reconcile the public interest in the Government's right to appeal from an erroneous conclusion of law with the defendant's interest in avoiding a second prosecution. In United States v. Wilson, 420 U. S. 332 (1975), the court permitted the case to go to the jury, which returned a verdict of guilty, but it subsequently dismissed the indictment for preindictment delay on the basis of evidence adduced at trial. Most recently in United States v. Ceccolini, 435 U. S. 268 (1978), we described similar action with approval: "The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt." Id., at 271. Accord, United States v. Kopp, 429 U. S. 121 (1976); United States v. Rose, 429 U. S. 5 (1976); United States v. Morrison, 429 U. S. 1 (1976).

We, of course, do not suggest that a midtrial dismissal of a prosecution, in response to a defense motion on grounds unrelated to guilt or innocence, is necessarily improper. Such rulings may be necessary to terminate proceedings marred by fundamental error. But where a defendant prevails on such a motion, he takes the risk that an appellate court will reverse the trial court.

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BRENNAN, J., dissenting

bunal." Wade v. Hunter, 336 U. S. 684, 689 (1949). We now conclude that where the defendant himself seeks to have the trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so is not barred by 18 U. S. C. § 3731 (1976 ed.).

We recognize the force of the doctrine of stare decisis, but we are conscious as well of the admonition of Mr. Justice Brandeis:

"[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406-408 (1932) (dissenting opinion).

Here, "the lessons of experience" indicate that Government appeals from midtrial dismissals requested by the defendant would significantly advance the public interest in assuring that each defendant shall be subject to a just judgment on the merits of his case, without "enhancing the possibility that even though innocent he may be found guilty." Green, 355 U. S., at 188. Accordingly, the contrary holding of United States v. Jenkins is overruled.

The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings.

It is so ordered.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE STEVENS join, dissenting.

On the basis of his evaluation of the trial evidence, the District Judge concluded that unjustifiable preindictment de

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