(CC Ind. 1839). He vigorously rejected the view that the Double Jeopardy Clause prohibited any new trial after the setting aside of a judgment of conviction against the defendant or that it "guarantees to him the right of being hung, to protect him from the danger of a second trial." Id., at 690.

III

Although the primary purpose of the Double Jeopardy Clause was to protect the integrity of a final judgment, see Crist v. Bretz, ante, at 33, this Court has also developed a body of law guarding the separate but related interest of a defendant in avoiding multiple prosecutions even where no final determination of guilt or innocence has been made. Such interests may be involved in two different situations: the first, in which the trial judge declares a mistrial; the second, in which the trial judge terminates the proceedings favorably to the defendant on a basis not related to factual guilt or innocence.

A

When a trial court declares a mistrial, it all but invariably contemplates that the prosecutor will be permitted to proceed anew notwithstanding the defendant's plea of double jeopardy. See Lee v. United States, 432 U. S. 23, 30 (1977). Such a motion may be granted upon the initiative of either party or upon the court's own initiative. The fact that the trial judge contemplates that there will be a new trial is not conclusive on the issue of double jeopardy; in passing on the propriety of a declaration of mistrial granted at the behest of the prosecutor or on the court's own motion, this Court has balanced "the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him," Downum v. United States, 372 U. S. 734, 736 (1963), against the public interest in insuring that justice is meted out to offenders.

Our very first encounter with this situation came in United

States v. Perez, 9 Wheat. 579 (1824), in which the trial judge had on his own motion declared a mistrial because of the jury's inability to reach a verdict. The Court said that trial judges might declare mistrials "whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Id., at 580. In our recent decision in Arizona v. Washington, 434 U. S. 497 (1978), we reviewed this Court's attempts to give content to the term "manifest necessity." That case, like Downum, supra, arose from a motion of the prosecution for a mistrial, and we noted that the trial court's discretion must be exercised with a careful regard for the interests first described in United States v. Perez. Arizona v. Washington, supra, at 514-516.

8

Where, on the other hand, a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution. "[A] motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by a prosecutorial or judicial error." United States v. Jorn, 400 U. S. 470, 485 (1971) (opinion of Harlan, J.). Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact. "The important considera

8 Downum, in 1963, was the first case in which this Court actually reversed a subsequent conviction because of an improper declaration of a mistrial. This, too, provided greater protection for a defendant than was available at the common law. Although English precedents clearly disapproved of unnecessary mistrials, see generally Arizona v. Washington, 434 U. S., at 506-508, and nn. 21-23, the English rule at the time of the adoption of the Constitution was, as it remains today, that nothing short of a final judgment would bar further prosecution. "The fact that the jury was discharged without giving a verdict cannot be a bar to a subsequent indictment." 11 Halsbury's Laws of England, Criminal Law, Evidence, and Procedure 242 (4th ed. 1976).

tion, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error." United States v. Dinitz, 424 U. S. 600, 609 (1976). But "[t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions." Id., at 611.

B

We turn now to the relationship between the Double Jeopardy Clause and reprosecution of a defendant who has successfully obtained not a mistrial but a termination of the trial in his favor before any determination of factual guilt or innocence. Unlike the typical mistrial, the granting of a motion such as this obviously contemplates that the proceedings will terminate then and there in favor of the defendant. The prosecution, if it wishes to reinstate the proceedings in the face of such a ruling, ordinarily must seek reversal of the decision of the trial court.

The Criminal Appeals Act, 18 U. S. C. § 3731 (1976 ed.), as previously noted, makes appealability of a ruling favorable to the defendant depend upon whether further proceedings upon reversal would be barred by the Double Jeopardy Clause. Jenkins, 420 U. S., at 370, held that, regardless of the character of the midtrial termination, appeal was barred if "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." However, only last Term, in Lee, supra, the Government was permitted to institute a second prosecution after a midtrial dismissal of an indictment. The Court found the circumstances presented by that case "functionally indistinguishable from a declaration of mistrial." 432 U. S., at 31. Thus, Lee demonstrated that, at least in some cases, the dismissal of an indictment may be treated on the same basis as the declaration of a mistrial.

In the present case, the District Court's dismissal of the first count of the indictment was based upon a claim of preindictment delay and not on the court's conclusion that the Government had not produced sufficient evidence to establish the guilt of the defendant. Respondent Scott points out quite correctly that he had moved to dismiss the indictment on this ground prior to trial, and that had the District Court chosen to grant it at that time the Government could have appealed the ruling under our holding in Serfass v. United States, 420 U. S. 377 (1975). He also quite correctly points out that jeopardy had undeniably "attached" at the time the District Court terminated the trial in his favor; since a successful Government appeal would require further proceedings in the District Court leading to a factual resolution of the issue of guilt or innocence, Jenkins bars the Government's appeal. However, our growing experience with Government appeals convinces us that we must re-examine the rationale of Jenkins in light of Lee, Martin Linen, and other recent expositions of the Double Jeopardy Clause.

IV

Our decision in Jenkins was based upon our perceptions of the underlying purposes of the Double Jeopardy Clause, see supra, at 87:

"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.

Jenkins, supra, at 370, quoting Green, 355 U. S., at 187. Upon fuller consideration, we are now of the view that this language from Green, while entirely appropriate in the circumstances of that opinion, is not a principle which can be

expanded to include situations in which the defendant is responsible for the second prosecution. It is quite true that the Government with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense. This truth is expressed in the three common-law pleas of autrefois acquit, autrefois convict, and pardon, which lie at the core of the area protected by the Double Jeopardy Clause. As we have recognized in cases from United States v. Ball, 163 U. S. 662 (1896), to Sanabria v. United States, ante, p. 54, a defendant once acquitted may not be again subjected to trial without violating the Double Jeopardy Clause.

But that situation is obviously a far cry from the present case, where the Government was quite willing to continue with its production of evidence to show the defendant guilty before the jury first empaneled to try him, but the defendant elected to seek termination of the trial on grounds unrelated to guilt or innocence. This is scarcely a picture of an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who chooses to avoid conviction and imprisonment, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government's case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.

We have previously noted that "the trial judge's characterization of his own action cannot control the classification of the action." Jorn, 400 U. S., at 478 n. 7 (opinion of Harlan, J.), citing United States v. Sisson, 399 U. S. 267, 290 (1970). See also Martin Linen, 430 U. S., at 571; Wilson, 420 U. S., at 336. Despite respondent's contentions, an appeal is not barred simply because a ruling in favor of a defendant "is based upon facts outside the face of the indictment," id., at 348, or be