Nonetheless, as the discussion in Part II, supra, indicates, our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands. A close reexamination of those precedents, however, persuades us that they have not properly construed the Clause, and accordingly should no longer be followed.

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."

7 Trono arose from a murder prosecution in the Philippines. After a nonjury trial the defendants were acquitted of the crime of murder, but were convicted of the lesser included offense of assault. They appealed to the Supreme Court of the Philippine Islands, which reversed the judgment

The common ancestor of these statements in Resweber and Trono, then, is United States v. Ball, which provides a logical starting point for unraveling the conceptual confusion arising from Bryan and the cases which have followed in its wake. This is especially true since Ball appears to represent the first instance in which this Court considered in any detail the double jeopardy implications of an appellate reversal. North Carolina v. Pearce, 395 U. S. 711, 719-720 (1969).

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:

"[A] defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted. Hopt v. Utah, 104 U. S. 631; 110 U. S. 574; 114 U. S. 488; 120 U. S. 430; Regina v. Drury, 3 Cox Crim. Cas. 544; S. C. 3 Car. & Kirw. 193; Commonwealth v. Gould, 12 Gray, 171." 163 U. S., at 672.

and entered convictions for murder, increasing their sentences as well. This Court affirmed, although "it seems apparent that a majority of the Court was unable to agree on any common ground for the conclusion that an appeal of a lesser offense destroyed a defense of a former jeopardy on a greater offense for which the defendant had already been acquitted." Green v. United States, 355 U. S. 184, 187 (1957). Green expressly confined the Trono decision to "its peculiar factual setting," namely, an interpretation of a "statutory provision against double jeopardy pertaining to the Philippine Islands." 355 U. S., at 187; see Price v. Georgia, 398 U. S. 323, 327-328, n. 3 (1970).

The reversal in Ball was therefore based not on insufficiency of evidence but rather on trial error, i. e., failure to dismiss a faulty indictment. Moreover, the cases cited as authority by Ball were ones involving trial errors."

We have no doubt that Ball was correct in allowing a new trial to rectify trial error:

"The principle that [the Double Jeopardy Clause] does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence." United States v. Tateo, 377 U. S. 463, 465 (1964) (emphasis supplied).

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 distin

8 Hopt v. Utah, 120 U. S. 430 (1887), was the last of four appeals by a defendant from a murder conviction in the Territory of Utah. On the first three appeals the convictions were reversed and new trials ordered because of trial errors, e. g., improper instruction, 104 U. S. 631 (1882); absence of the accused during a portion of the trial, improper hearsay testimony received, and prejudicial instruction, 110 U. S. 574 (1884); and inadequate record due to failure to record jury instructions, 114 U. S. 488 (1885). No claim of evidentiary insufficiency was sustained by the Court, and indeed no discussion of double jeopardy appears. Commonwealth v. Gould, 78 Mass. 171 (1858), was a state case in which a defendant was ordered tried on a superseding indictment, after the original indictment had been challenged. Finally, in the English case, Queen v. Drury, 3 Cox Crim. Cas. 544, 175 Eng. Rep. 516 (Q. B. 1849), the defendants had been given an improper sentence after being found guilty at a trial to which no other error was assigned. The court allowed a retrial, saying: "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.

guish between reversals due to trial error and those resulting from evidentiary insufficiency. We believe, however, that the failure to make this distinction has contributed substantially to the present state of conceptual confusion existing in this area of the law. Consequently, it is important to consider carefully the respective roles of these two types of reversals in double jeopardy analysis.

Various rationales have been advanced to support the policy of allowing retrial to correct trial error,' but in our view the most reasonable justification is that advanced by Tateo, supra, at 466:

"It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction."

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

It has been suggested, for example, that an appeal from a conviction amounts to a "waiver" of double jeopardy protections, see Trono v. United States, 199 U. 8. 521, 533 (1905); but see Green, supra, at 191-198; or that the appeal somehow continues the jeopardy which attached at the first trial, see Price v. Georgia, supra, at 326; but see Breed v. Jones, 421 U. S. 519, 534 (1975).

Appellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 365, 370 (1964).

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.10 Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal-no matter how erroneous its decision-it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

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

10 In holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. See American Tobacco Co. v. United States, 328 U. S. 781, 787 n. 4 (1946).