was wrongly decided. It placed an unwarrantedly great emphasis on the defendant's right to have his guilt decided by the first jury empaneled to try him so as to include those cases where the defendant himself seeks to terminate the trial before verdict on grounds unrelated to factual guilt or innocence. We have therefore decided to overrule Jenkins, and thus to reverse the judgment of the Court of Appeals in this case.

II

The origin and history of the Double Jeopardy Clause are hardly a matter of dispute. See generally Wilson; supra, at 339-340; Green v. United States, 355 U. S. 184, 187-188 (1957); id., at 200 (Frankfurter, J., dissenting). The constitutional provision had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon. These three pleas prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense. As this Court has described the purpose underlying the prohibition against double jeopardy:

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green, supra, at 187-188.

These historical purposes are necessarily general in nature, and their application has come to abound in often subtle distinctions which cannot by any means all be traced to the original three common-law pleas referred to above.

Part of the difficulty arises from the development of other protections for criminal defendants in the years since the

adoption of the Bill of Rights. At the time the Fifth Amendment was adopted, its principles were easily applied, since most criminal prosecutions proceeded to final judgment, and neither the United States nor the defendant had any right to appeal an adverse verdict. See Act of Sept. 24, 1789, ch. 20, § 22, 1 Stat. 84. The verdict in such a case was unquestionably final, and could be raised in bar against any further prosecution for the same offense.

Soon thereafter, Congress made provision for review of certain criminal cases by this Court, but only upon a certificate of division from the circuit court, and not at the instigation of the defendant. Act of Apr. 29, 1802, ch. 31, § 6, 2 Stat. 159. It was not until 1889 that Congress permitted criminal defendants to seek a writ of error in this Court, and then only in capital cases. Act of Feb. 6, 1889, ch. 113, § 6, 25 Stat. 656.* Only then did it become necessary for this Court to deal with the issues presented by the challenge of verdicts on appeal.

And, in the very first case presenting the issues, United States v. Ball, 163 U. S. 662 (1896), the Court established principles that have been adhered to ever since. Three persons had been tried together for murder; two were convicted, the other acquitted. This Court reversed the convictions, finding the indictment fatally defective, Ball v. United States, 140 U. S. 118 (1891), whereupon all three defendants were tried again. This time all three were convicted and they again sought review here. This Court held that the Double Jeopardy Clause precluded further prosecution of the defendant who had been acquitted at the original trial but that it posed no such

5

Two years later, review was provided for all "infamous" crimes. Act of Mar. 3, 1891, ch. 517, § 5, 26 Stat. 827.

5 The Court thereby rejected the English rule set out in Vaux's Case, 4 Co. Rep. 44a, 76 Eng. Rep. 992 (K. B. 1590), which refused to recognize a plea of autrefois acquit where the initial indictment had been insufficient to support a conviction. Again, this ruling provided a greater measure of protection for criminal defendants than had been known at the time of the

bar to the prosecution of those defendants who had been convicted in the earlier proceeding. The Court disposed of their objection almost peremptorily:

"Their plea of former conviction cannot be sustained, because upon a writ of error sued out by themselves the judgment and sentence against them were reversed, and the indictment ordered to be dismissed. . . . [I]t is quite clear that 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." 163 U. S., at 671–672.

Although Ball firmly established that a successful appeal of a conviction precludes a subsequent plea of double jeopardy, the opinion shed no light on whether a judgment of acquittal could be reversed on appeal consistently with the Double Jeopardy Clause. Because of the statutory restrictions upon Government appeals in criminal cases, this Court in the years after Ball was faced with that question only in unusual circumstances, such as were present in Kepner v. United States, 195 U. S. 100 (1904). That case arose out of a criminal prosecution in the Philippine Islands, to which the principles of the Double Jeopardy Clause had been expressly made applicable by Act of Congress. Although the defendant had been acquitted in his original trial, traditional Philippine procedure provided for a trial de novo upon appeal. This Court, in reversing the resulting conviction, remarked:

"The court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even

adoption of the Constitution. A contrary ruling would have altered this Court's task in such cases as Lee v. United States, 432 U. S. 23 (1977), and Illinois v. Somerville, 410 U. S. 458 (1973).

in an appellate court, is to put him a second time in jeopardy for the same offense . . . ." Id., at 133.

More than 50 years later, in Fong Foo v. United States, 369 U. S. 141 (1962), this Court reviewed the issuance of a writ of mandamus by the Court of Appeals for the First Circuit instructing a District Court to vacate certain judgments of acquittal. Although indicating its agreement with the Court of Appeals that the judgments had been entered erroneously, this Court nonetheless held that a second trial was barred by the Double Jeopardy Clause. Id., at 143. Only last Term, this Court relied upon these precedents in United States v. Martin Linen Supply Co., 430 U. S. 564 (1977), and held that the Government could not appeal the granting of a motion to acquit pursuant to Fed. Rule Crim. Proc. 29 where a second trial would be required upon remand. The Court, quoting language in Ball, supra, at 671, stated: "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.'" 430 U. S., at 571.

These, then, at least, are two venerable principles of double jeopardy jurisprudence. The successful appeal of a judgment of conviction, on any ground other than the insufficiency of

In so doing, the Court rejected the contention of Mr. Justice Holmes in dissent that "there is no rule that a man may not be tried twice in the same case." 195 U. S., at 134. He went on to say:

"If a statute should give the right to take exceptions to the Government, I believe it would be impossible to maintain that the prisoner would be protected by the Constitution from being tried again. He no more would be put in jeopardy a second time when retried because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm." Id., at 135.

Mr. Justice Holmes' concept of continuing jeopardy would have greatly simplified the matter of Government appeals, but it has never been accepted by a majority of this Court. See Jenkins, 420 U. S., at 358.

the evidence to support the verdict, Burks v. United States, ante, p. 1, poses no bar to further prosecution on the same charge. A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.' What may seem superficially to be a disparity in the rules governing a defendant's liability to be tried again is explainable by reference to the underlying purposes of the Double Jeopardy Clause. As Kepner and Fong Foo illustrate, the law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that "even though innocent he may be found guilty." Green, 355 U. S., at 188. On the other hand, to require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect. The common sense of the matter is most pithily, if not most elegantly, expressed in the words of Mr. Justice McLean on circuit in United States v. Keen, 26 F. Cas. 686 (No. 15,510)

"In Jenkins we had assumed that a judgment of acquittal could be appealed where no retrial would be needed on remand:

"When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict." Id., at 365. Despite the Court's heavy emphasis on the finality of an acquittal in Martin Linen and Sanabria v. United States, ante, p. 54, neither decision explicitly repudiates this assumption. Sanabria, ante, at 75; Martin Linen, 430 U. S., at 569–570.