BRENNAN, J., dissenting 437 U.S. ticular issue in that case and was never intended to serve as an all-encompassing definition of acquittal for all purposes. Rather, Martin Linen Supply referred generally to "acquittal" as "a legal determination on the basis of facts adduced at the trial relating to the general issue of the case," id., at 575 (citations omitted), and this is the accepted definition. See Serfass v. United States, 420 U. S. 377, 393 (1975), quoting United States v. Sisson, 399 U. S. 267, 290 n. 19 (1970). This definition, moreover, clearly encompasses rulings pertaining to all "affirmative defenses" that depend on the factual development at trial. The traditional definition of "acquittal" obviously is responsive to the values protected by the Double Jeopardy Clause. While it perhaps might not be objectionable to permit retrial of a defendant whose first trial was terminated on the basis of a midtrial ruling on a motion that couldbecause it did not depend upon the facts adduced at trial-have been raised before jeopardy attached, see Serfass v. United States, supra, at 394,8 it would be intolerable to permit the retrial of a defendant whose first prosecution ended on the basis of a ruling-like the one in the present case which could only be made after the factual development at trial. Notably, the Court neither explains why it chooses to reject the more traditional definition of "acquittal" nor attempts to justify its more restrictive definition in terms of the constitutional policy against multiple trials. But I will not dwell further on this point. As the Court opinion itself demonstrates, what is perhaps as important as the actual definition is how it is applied. The pertinent question, thus, is one the Court never addresses: Why, for pur In Serfass, we reserved decision on the question whether a defendant who was afforded an opportunity to obtain a determination of a legal defense prior to trial but who nevertheless knowingly allowed himself to be placed in jeopardy before raising the defense could claim the protections of the Double Jeopardy Clause. 420 U. S., at 394. 82 BRENNAN, J., dissenting poses of its new definition of "acquittal," is not the fact vel non of preindictment delay one of the "factual elements of the offense charged"? The Court plainly cannot answer that preindictment delay is not referred to in the statutory definition of the offense charged in count one, cf. Patterson v. New York, 432 U. S. 197 (1977), for it states that dismissals based on the defenses of insanity and entrapment-neither of which is bound up with the statutory definition of federal crimes will constitute "acquittals." Ante, at 97-98. 9 How can decisions based on the trial evidence that a defendant is "not guilty by reason of insanity" or "not guilty by reason of entrapment" erect a double jeopardy bar, and a decision-equally based on evaluation of the trial evidencethat the defendant is "not guilty by reason of preaccusation delay" not also prohibit further prosecution? None of these defenses is bound up in the definition of a crime, and the availability of each depends on the factual development at trial. More fundamentally, to permit a retrial following an appellate court's reversal of a judgment entered on any of these grounds presents all the evils the Double Jeopardy Clause was designed to prevent. The Court offers no satisfactory explanation for the difference in treatment. The suggestion that determinations concerning insanity and entrapment are "factual" whereas dismissals of indictments for preindictment delay represent "legal judgments," see ante, A contrary position would not only be inconsistent with Burks v. United States, ante, p. 1, but would also have untoward consequences for criminal defendants. The premise of such a ruling would necessarily be that a criminal defendant has no legitimate interest in protecting the finality of a verdict of not guilty by reason of insanity. It would then follow that there could be appellate review not only of all directed verdicts of not guilty by reason of insanity, but also of all jury verdicts that had been preceded by a prior finding of guilt of the statutory offense. The implications of such a holding would be particularly significant in jurisdictions providing for bifurcated determinations of guilt and sanity. BRENNAN, J., dissenting 437 U.S. at 98, is simply untenable. Consideration of all three defenses requires the application of legal standards to the evidence adduced at trial, and the most likely ground for reversal and reprosecution following the entry of a final judgment favorable to the accused on such grounds would be an appellate court's conclusion that the trial court applied an erroneous legal test. The question the Court fails to address, therefore, is why an egregiously erroneous dismissal on entrapment grounds-e. g., a ruling in a federal trial that a defendant has been entrapped as a matter of law because it had been shown that the Government had supplied the contraband the defendant had been charged with selling, cf. Hampton v. United States, 425 U. S. 484 (1976)-should erect a double jeopardy bar but not a possibly erroneous dismissal on the ground of preaccusation delay. The Court's observation that factual defenses of insanity and entrapment provide "legal justifications for otherwise criminal acts”—and is unlike the doctrine of preindictment delay, which is intended to protect the integrity of the trial process-reflects common legal parlance but in no wise explains why the two classes of dismissals should have different double jeopardy consequences. Whether or not the Court's ipse dixit concerning the consequences of a ruling of unlawful preaccusation delay is defensible, the enormous practical problems that today's decision portends are very clear. A particularly appealing virtue of the Jenkins and Lee principle-in addition, of course, to its protection of constitutional values-was its simplicity. Any midtrial order contemplating an end to all prosecution of the accused would automatically erect a double jeopardy bar to a retrial. Under today's decision, the thousands of state and federal courts will be required to decide, with only minimal guidance from this Court, the question of the double jeopardy consequences of all favorable terminations of criminal proceedings on the basis of affirmative defenses. The only guidance the Court offers is its suggestion that defenses which 82 BRENNAN, J., dissenting provide legal justifications for otherwise criminal acts will erect double jeopardy bars whereas those defenses that arise from unlawful or unconstitutional Government acts will not. Consideration of the defense of entrapment illustrates how difficult the Court's decision will be to apply. To the extent the defense applies when there has been a showing the defendant was not "predisposed" to commit a criminal act, it perhaps does provide a "legal justification." But the defense of entrapment, in many jurisdictions, see Park, The Entrapment Controversy, 60 Minn. L. Rev. 163, 171-176 (1976), is a device to deter police officials from engaging in reprehensible law enforcement techniques. Is the entrapment defense to erect a double jeopardy bar in such jurisdictions? Are the double jeopardy consequences to depend upon the appellate court's characterization of the operation of the defense in the particular case before it? And what of other traditional factual defenses, which are routinely submitted to the jury and which could be the basis for Rule 29 motions: e. g., the statute of limitations? 10 Ironically, it seems likely that, when all is said and done, there will be few instances indeed in which defenses can be deemed unrelated to factual innocence. If so, today's decision may be limited to disfavored doctrines like preaccusation delay. See generally United States v. Lovasco, 431 U. S. 783 (1977). It is regrettable that the Court should introduce such confusion in an area of the law that, until today, had been crystal clear. Its introduction might be tolerable if necessary to advance some important policy or to serve values protected by 10 In any case in which the date upon which the defendant committed the crime is disputed and may have been outside the statute of limitations provided by law, a trial judge could, and probably would, submit this question to the jury along with the general issue. Similarly, in any case in which the evidence adduced at trial revealed that the defendant had committed the criminal act outside the limitation period, the defendant would move for a "directed verdict." BRENNAN, J., dissenting 437 U.S. the Double Jeopardy Clause, but that manifestly is not the case. Rather, today's decision fashions an entirely arbitrary distinction that creates precisely the evils that the Double Jeopardy Clause was designed to prevent. I would affirm the judgment of the Court of Appeals. |