with whom Justice Marshall joins, concurring in part and concurring in the judgment.
I agree that, because respondent was “in custody” within the meaning of 28 U. S. C. §§ 2241(c)(3) and 2254(a) and because he had exhausted all available state remedies for his constitutional claim, the District Court had jurisdiction to entertain his habeas corpus petition. Accordingly, I join Parts I and II of the Court’s opinion.1 I analyze the merits differently than does the Court, however, and therefore do not join Parts III and IV of its opinion.
r-H
The Court rejects Lydon’s double jeopardy claim by relying on the absence of “government oppression” and the presence of “continuing jeopardy.” For many of the reasons advanced by the Court, as well as others, see infra, at 324-326, I completely agree that the two-tier trial option available to Massachusetts defendants appears eminently fair and reasonable and that there is therefore no evidence of the kind of “governmental oppression” that might, apart from other analytical considerations, provide an independent basis for a double jeopardy claim. I do not, however, believe — nor do I *314understand the Court to suggest — that the absence of “governmental oppression” standing alone would defeat a double jeopardy claim otherwise valid under our cases.
At first blush, Lydon appears to present such a claim. The Court assumes, as petitioners concede, “that jeopardy attached at the swearing of the first witness at Lydon’s bench trial,” ante, at 309; the Commonwealth does not claim it lacked “a fair opportunity” to present its best evidence nor does it challenge the District Court’s determination, based on an application of Massachusetts decisions directly on point, that “the State had failed as a matter of law to prove its case” against Lydon, see 698 F. 2d 1, 7 (CA1 1982) (opinion below); and, finally, the Court seems to acknowledge that, as a result of today’s decision, Lydon will undergo two trials, ante, at 309. Accordingly, Lydon appears to establish that, contrary to the rule we unanimously reaffirmed just three Terms ago, he will be subjected to “retrial where the State has failed as a matter of law to prove its case despite a fair opportunity to do so.” Hudson v. Louisiana, 450 U. S. 40, 45, n. 5 (1981).2
The Court meets this argument by noting that Lydon has only a “claim of evidentiary failure . . . [, not] a legal judgment to that effect. . . .” Ante, at 309. Invoking the concept of “continuing jeopardy,” the Court maintains that such a “legal judgment” is required before jeopardy is “terminated” and a retrial barred. Nor, in the Court’s view, is it *315enough for these purposes that Lydon has obtained a “legal judgment” that the evidence was constitutionally inadequate from a Federal District Court, acting within its jurisdiction and after the defendant has exhausted state remedies. Instead, Lydon’s claim must be rejected because “he fails to identify any stage of the state proceedings that can be held to have terminated jeopardy.” Ante, at 309.
I agree that a valid double jeopardy claim presupposes some identifiable point at which a first trial may be said to have ended. See infra, at 320. I respectfully suggest, however, that mere incantation of the phrase “continuing jeopardy,” without more, partakes of the sort of “conceptual abstractions” that our decisions elaborating the requirements of the Double Jeopardy Clause have attempted to avoid. See United States v. Toteo, 377 U. S. 463, 466 (1964). For example, although the Court holds that the Double Jeopardy Clause bars retrial after certain jeopardy-terminating “legal judgments,” its approach sets no apparent limits on a State’s ability to withhold the necessary “legal judgment,” thereby maintaining a state of “continuing jeopardy” and justifying repeated attempts to gain a conviction. And by ignoring the realities of Lydon’s situation and demanding a state-court “legal judgment” of acquittal, the Court manages to avoid grappling with the common-sense intuition that the guilty verdict rendered at the end of Lydon’s first-tier trial constitutes an obvious point at which proceedings against him “terminated.”3
*316To the best of my knowledge, this is the first occasion on which the Court has employed the “continuing jeopardy” notion in such a formalistic fashion. Until today, we have repeatedly emphasized that the concept of “continuing jeopardy” is, at best, a label that “has occasionally been used to explain why an accused who has secured the reversal of a conviction on appeal may be retried for the same offense.” Breed v. Jones, 421 U. S. 519, 534 (1975). See also Burks v. United States, 437 U. S. 1, 15 (1978); Price v. Georgia, 398 U. S. 323, 329, n. 4 (1970). But as a talismanie substitute for analysis, the “continuing jeopardy” concept “has 'never been adopted by a majority of this Court/ ” Breed v. Jones, supra, at 534, quoting United States v. Jenkins, 420 U. S. 358, 369 (1975).
In particular, the rule allowing retrials after reversal for trial error, first announced in United States v. Ball, 163 U. S. 662, 672 (1896), has never rested on the theory that, notwithstanding a guilty verdict ending trial level proceedings, the trial never “terminated” and the defendant therefore remained in a state of “continuing jeopardy.” Instead, we have grounded the Ball rule in “the implications of that principle for the sound administration of justice.” United *317States v. Toteo, supra, at 466. See also Tibbs v. Florida, 457 U. S. 31, 40 (1982); United States v. DiFrancesco, 449 U. S. 117, 131 (1980); United States v. Scott, 437 U. S. 82, 89-92 (1978); United States v. Wilson, 420 U. S. 332, 343-344, n. 11 (1975).4 The opinion in Burks provided the fullest explanation for the Ball rule and also explained why that rule does not permit retrials after reversals based on insufficient evidence:
“[Reversal for trial error, as distinguished from evi-dentiary 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 .... 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. . . .
“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. Moreover, such an appellate reversal means that the government’s case was *318so 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.” Burks v. United States, supra, at 15-16 (emphasis in original) (footnote omitted).
The decision in Burks, therefore, is not merely an application of an abstract concept of “continuing jeopardy.” Instead, Burks derives from “[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence” — that a “'verdict of acquittal . . . [canjnot be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’” United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977) (quoting United States v. Ball, supra, at 671). Unlike a reversal for trial error, a reversal for constitutionally insufficient evidence represents a determination that, notwithstanding the verdict to the contrary, no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U. S. 307, 319 (1979), and therefore the defendant was entitled to a judgment of acquittal as a matter of law. In the eyes of the law, the defendant is innocent of the charges brought against him. The policies barring retrial after acquittal are no less applicable to such a defendant simply because he, unlike a defendant who actually obtained a judgment of acquittal, was tried before an irrational or lawless factfinder.
To be sure, the Burks rule is not engaged unless the conviction at the first trial is reversed and the State seeks a retrial; Burks forbids a retrial under those circumstances if the evidence at the first trial was constitutionally insufficient. In that respect, the Court is quite correct in stating that a prerequisite to a successful Burks claim is a “legal judgment” rendered at some point that the evidence was insufficient *319under the standards of Jackson v. Virginia, supra. But the Court’s “continuing jeopardy” concept begs the questions of whether and when the defendant is entitled to a judgment barring further proceedings.5 For all that concept provides, the defendant in Burks was simply fortunate that the reviewing court chose to provide him with a judicial “determination that the evidence was insufficient to support a conviction,” ante, at 309, and did not instead rely on an alternative ground of reversal. In the latter event, Burks, like Lydon, would have been left with only a “claim of evidentiary failure[, not] a legal judgment to that effect.” Ibid. I cannot agree that the protections of the Double Jeopardy Clause depend so heavily on the grace of a reviewing court. See infra, at 320-321.
For these reasons, I do not find invocation of an unadorned “continuing jeopardy” concept helpful in resolving the issues posed by this case. Instead, if we are to employ the label “continuing jeopardy,” I would attempt to give it content by turning to the principles and policies of the Double Jeopardy Clause that this Court has elaborated in analogous cases.
*320h — I b — 1
In order “to be twice put in jeopardy of life or limb” for the same offense, U. S. Const., Arndt. 5 (emphasis added), a defendant facing a new .trial must have been subjected to a previous proceeding at which jeopardy attached as a matter of federal constitutional law, Crist v. Bretz, 437 U. S. 28 (1978), and which has now somehow ended; in the Court’s terminology, former jeopardy must have “terminated.” Of course, it is not sufficient that the defendant claims that one proceeding has concluded and another has begun. For example, the second half of a trial does not subject a defendant to double jeopardy because his motion for a mistrial was denied in the middle of proceedings — even though the defendant asserts that, as far as he is concerned, his trial has ended. Instead, every valid double jeopardy claim presupposes some kind of predicate set of circumstances — such as those typically attendant to a verdict, judgment, or order dismissing the case — objectively concluding one trial and giving rise to the prosecution’s effort to begin another.
The question of whether jeopardy has objectively “terminated” should be analyzed in terms of the policies underlying the Double Jeopardy Clause, namely, its concern that repeated trials may subject a defendant “to embarrassment, expense and ordeal and competí] 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 v. United States, 355 U. S. 184, 187-188 (1957). Jeopardy may be said to have terminated only when the posture of a trial in some objective sense leaves the defendant in such a position that resumption of proceedings would implicate those policies.
Hence, although in most instances a “legal judgment” undoubtedly entails the kind of circumstances under which we may easily conclude that jeopardy has terminated, it seems obvious that a State may not evade the strictures of the Clause simply by withholding a legal judgment and thereby *321subjecting a defendant to retrial on the theory of “continuing jeopardy.” To take two extreme examples, a trial judge, having received a jury verdict of not guilty, may not justify an order that the trial be repeated by refusing to enter a formal judgment on the jury’s verdict; nor may a State with a one-tier system avoid a double jeopardy claim by refusing to acknowledge that the first trial had in fact begun and ended. These hypothetical situations, while admittedly unrealistic, nevertheless demonstrate that the determination of whether a trial has in fact “terminated” for purposes of the Double Jeopardy Clause — like the question of whether a trial has begun, Crist v. Bretz, supra — is an issue of federal constitutional law; it cannot turn solely on whether the State has entered a “legal judgment” ending the proceedings. Cf. United States v. Martin Linen Supply Co., 430 U. S., at 571 (“what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action”).
The fact that a trial has ended does not, however, complete the constitutional inquiry; the Court has concluded, most notably in applying the Ball rule, that strong policy reasons may justify subjecting a defendant to two trials in certain circumstances notwithstanding the literal language of the Double Jeopardy Clause. See n. 5, supra. The issue of whether policy reasons of that kind justify retrial in a given case is, however, analytically distinct from the question of whether the challenged proceeding constitutes a second trial or, instead, a continuation of the first. Cases applying the Ball rule, for instance, acknowledge that the defendant will be subjected to two trials but find that fact constitutionally permissible. E. g., United States v. Tateo, 377 U. S., at 465-466.
Accordingly, once it has been determined that a trial has ended as a matter of constitutional law, a court considering a double jeopardy claim must consider the separate question of whether a second trial would violate the Constitution. For example, when a defendant challenging his conviction on ap*322peal contends both that the trial was infected by error and that the evidence was constitutionally insufficient, the court may not, consistent with the rule of Burks v. United States, 437 U. S. 1 (1978), ignore the sufficiency claim, reverse on grounds of trial error, and remand for retrial. Because the first trial has plainly ended, “retrial is foreclosed by the Double Jeopardy Clause if the evidence fails to satisfy the [constitutional standard for sufficiency]. Hence, the [sufficiency] issue cannot be avoided; if retrial is to be had, the evidence must be found to be legally sufficient, as a matter of federal law, to sustain the jury verdict.” Tibbs v. Florida, 457 U. S., at 51 (White, J., dissenting). See id., at 45 (majority opinion) (noting that consideration of evidentiary sufficiency before ordering retrial is part of state appellate court’s “obligations to enforce applicable state and federal laws”).
In short, I believe there are two distinct limitations on a State’s ability to retry a defendant on a claim of “continuing jeopardy.” First, the issue of whether a trial has ended so that a second trial would constitute double jeopardy is a federal constitutional question, informed but not controlled by the State’s characterization of the status of the proceedings; resolution of that question turns essentially on the relationship between the circumstances at issue and the policies underlying the Double Jeopardy Clause. Second, once it has been determined that a first trial has in fact ended, terminating former jeopardy as a matter of federal constitutional law, a State may not place the defendant in jeopardy a second time if retrial is constitutionally barred on any grounds properly preserved and presented.6
*323hH HH HH
In this ease, the guilty verdict rendered by the first-tier judge undeniably ended a set of proceedings in that courtroom that would be most naturally understood as a single, completed trial. Arguably, therefore, that verdict “terminated” jeopardy. If so, and if the evidence at the first trial was insufficient, then retrial of Lydon at the second tier would be constitutionally barred under Burks, without regard to whether the vacating of the guilty verdict, in and of itself, would otherwise permit a new trial under the Ball rule. And because Lydon has fully exhausted available state remedies, the federal habeas court would be fully authorized to vindicate his claim before trial or after conviction. See ante, at 302-303; Arizona v. Washington, 434 U. S. 497 (1978).7
*324In the unique context of the Massachusetts two-tier trial system, however, I do not believe a guilty verdict at the first tier is attended by the type of circumstances that can be said to “terminate” trial-level proceedings against Lydon for purposes of the Double Jeopardy Clause. In terms of the policies advanced by the Clause, that verdict has substantially less significance for the defendant than it would have in a traditional, one-tier system. See generally Colten v. Kentucky, 407 U. S. 104 (1972). In the latter context, a defendant has no right to insist on two opportunities to prove his case and rebut the prosecution’s. Although there ultimately may be two trials, as when a conviction is reversed on appeal for trial error, that eventuality is largely beyond the defendant’s control. A defendant will therefore ordinarily approach a trial on the assumption that it will be his only opportunity to influence the factfinder in his favor. That expectation will presumably result in a maximum dedication of the defendant’s resources to the trial, which in turn will engender a significant degree of anxiety during the course of proceedings.
In contrast, as the dissenting judge in the Court of Appeals pointed out, Lydon chose to be tried in a system the defining characteristic of which is that it provides the defendant “two full opportunities to be acquitted on the facts” 698 F. 2d, at 11 (Campbell, J., dissenting) (emphasis in original). Unlike a defendant in a traditional trial system, a defendant in Lydon’s position knows from the outset of the first-tier proceeding that, at its conclusion, he can demand a chance to convince a second factfinder that he is innocent. This knowledge permits him to adopt in advance a trial strategy based on that opportunity. He can, for example, withhold some of his stronger evidence with the intention of introducing it at *325the second tier after evaluating the prosecution’s entire case; in addition, he can take risks in his presentation, secure in the knowledge that he can avoid any resulting dangers the second time around. Perhaps more importantly, the defendant’s realization throughout the first-tier trial that he has an absolute right to a second chance necessarily mitigates the sense of irrevocability that normally attends the factfinding stage of criminal proceedings, from beginning to end. For these reasons, the defendant’s prospective knowledge of his entitlement to a second factfinding opportunity substantially diminishes the burden imposed by the first proceeding as well as the significance of a guilty verdict ending that proceeding.
Furthermore, the strategic advantage gained by a defendant who chooses the two-tier system is enhanced by virtue of the fact that the prosecution does not share an equivalent advantage. As the Court notes, the “prosecution has every incentive to put forward its strongest case at the bench trial, because an acquittal will preclude reprosecution of the defendant.” Ante, at 311. The Court also notes that “[a]l-though admittedly the Commonwealth at the de novo trial will have the benefit of having seen the defense, the defendant likewise will have had the opportunity to assess the prosecution’s case.” Ibid. Of course, both of these points could be advanced to justify the retrial of a defendant who has been convicted in a traditional system and who has not appealed— a practice prohibited under the Double Jeopardy Clause. See ante, at 306-307. What distinguishes the Massachusetts system for me, however, is that it permits but does not compel a defendant to secure the advantage of knowing in advance that he, but not the prosecution, may demand a second factfinding opportunity.8 That advantage substantially re*326duces the significance of the circumstances surrounding a guilty verdict concluding the first-tier to the point that I conclude that such a verdict does not “terminate” jeopardy.
This conclusion is unaffected by Lydon’s claim that earlier Massachusetts cases led him to believe that he could challenge the sufficiency of the evidence presented at the first-tier trial through a motion to dismiss filed at the outset of the second-tier. See Brief for Respondent 55. Cf. post, at 331-332, n. 2 (Stevens, J., concurring in part and concurring in judgment). Assuming the authoritativeness of those cases and Lydon’s reasonable reliance on them, the Commonwealth’s failure to provide a promised avenue of relief might amount to a violation of due process. The prospect of such a remedy does not, however, bear on whether the circumstances surrounding a guilty verdict at the end of the first tier “terminated” proceedings for purposes of the Double Jeopardy Clause. Faced with a charge for which he believes the prosecution has constitutionally insufficient evidence, a defendant in Lydon’s position can choose the ordinary one-tier system in the expectation that, if his sufficiency claim is sustained, he will never be required to undergo a second trial under Burks. A decision to select the two-tier system instead necessarily achieves the advantages flowing from the knowledge that he can demand a second factfinding opportunity. Even if that choice is made only as a hedge against the possibility that the insufficiency claim will be rejected by every court the defendant believes can entertain it, selec*327tion of the two-tier alternative itself clearly diminishes both the strategic and emotional significance of the guilty verdict at the first tier.
For these reasons, I conclude that the guilty verdict rendered at the end of Lydon’s bench trial did not, for purposes of the Double Jeopardy Clause, “terminate” one trial and thereby permit a claim that a second trial was barred due to insufficient evidence. Accordingly, I agree that the federal habeas court erred in sustaining Lydon’s claim on the merits and therefore join the judgment of the Court.
Although it appears in Part II in which I otherwise concur, I do not agree with the implications of footnote 5 of the Court’s opinion. See n. 7, infra.
Lydon does not contend that the Commonwealth is required by the Federal Constitution to afford appellate review of the evidence presented at the bench trial before proceeding with the second-tier trial. See Brief for Respondent 85-90. Instead, Lydon argues that the Commonwealth violated Burks v. United States, 457 U. S. 1 (1978), by ordering him to undergo a second trial, despite what he claims was insufficient evidence at the first trial. As the Court appears to recognize, the jurisdiction of a federal habeas court to entertain such a claim does not depend on the Commonwealth’s failure to provide appellate or indeed any other kind of review of the sufficiency before the second trial. The habeas court has jurisdiction as long as the defendant has exhausted whatever state remedies are in fact available. See ante, at 302-303.
Ultimately, the Court’s decision rests on an ipse dixit that “[a]cquittals, unlike convictions, terminate the initial jeopardy.” Ante, at 308. The Court nowhere explains why an acquittal marks the end of a trial while a conviction or, as in this case, a judgment that the defendant was entitled to an acquittal, lack that effect. Cf. Green v. United States, 355 U. S. 184, 187 (1957), quoting Ex parte Lange, 18 Wall. 163, 169 (1874) (“The common law not only prohibited a second punishment for the same offence, but it went further and forb[ade] a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted”). Cf. post, at 329-330 (Stevens, J., con*316curring in part and concurring in judgment); infra, at 323-327. In any event, if in fact convictions do not terminate jeopardy, then renewed prosecution of a defendant after an unreversed conviction for the same offense — which the Court acknowledges is barred, ante, at 306-307 — would constitute only “continuing” and not double jeopardy under the Court’s theory. Nor, under the Court’s approach, could the prohibition against such a prosecution be justified by the policy against subjecting a defendant to multiple punishments for the same offense. If a guilty verdict does not “terminate” proceedings, a convicted defendant subjected to further prosecution for the same offense is simply not “twice put in jeopardy” within the language of the Double Jeopardy Clause. U. S. Const., Arndt. 5 (emphasis added). See Missouri v. Hunter, 459 U. S. 359, 366 (1983) (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended”).
The Court finds authority for its approach in the statement in Price v. Georgia, 398 U. S. 323, 329 (1970), that “[t]he concept of continuing jeopardy [is] implicit in the Ball case.” The opinion in Price did not, however, approve the “broad continuing jeopardy approach,” id., at 328, n. 3. Indeed, as the Court notes, ante, at 308, Price suggested that, in light of modern double jeopardy cases, the conclusion represented by the “continuing jeopardy” label reflects “an amalgam of interests — e. g., fairness to society, lack of finality, and limited waiver, among others.” 398 U. S., at 329, n. 4. Like Toteo, Jenkins, Breed, Burks, Scott, Wilson, DiFrancesco, and Tibbs, therefore, Price eschewed reliance on the mere shibboleth of “continuing jeopardy.”
Our modern double jeopardy cases have emphasized that, absent substantial countervailing state interests such as ordinarily obtain when a conviction is reversed on grounds of trial error, “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 v. United States, 355 U. S. 184, 187-188 (1957). See also Tibbs v. Florida, 457 U. S. 31, 39-42 (1982). Although the Court quotes the same language from Green, ante, at 307, the “continuing jeopardy” concept on which it relies, as originally set out by Justice Holmes in his dissenting opinion in Kepner v. United States, 195 U. S. 100, 134-137 (1904), entails no discernible limit on the government’s ability repeatedly to retry a defendant for “the same cause”:
“[I]t seems to me that logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause.”
The approach I have proposed is fully consistent with Ludwig v. Massachusetts, 427 U. S. 618 (1976), and indeed avoids the tension suggested in the Court’s opinion between that case and Burks v. United States, 437 U. S. 1 (1978). See ante, at 306-306 and 309-310. As the Court notes, the opinion in Ludwig analogized the second-tier of trial proceedings in Massachusetts to a retrial after reversal of the conviction permissible under the Ball rule. 427 U. S., at 631-632. The Court did not rely on the *323notion that jeopardy continued through both proceedings, rendering them a single “trial,” but rather assumed, as in Ball itself, that the second tier constituted a “new trial.” 427 U. S., at 632. There was, of course, no suggestion in Ludwig that such a “new trial” was barred because of the absence of constitutionally sufficient evidence — the issue presented by this case — and therefore the Court had no occasion to consider whether the guilty verdict at Ludwig’s first-tier trial “terminated” jeopardy.
Contrary to the Court’s suggestion, Lydon has exhausted every available state remedy for each element of his Burks argument, including that argument’s predicate claim that the evidence at the first trial was insufficient. In implying that the sufficiency issue is unexhausted because Lydon failed “to present his claim to the de novo court in precisely the manner that the Massachusetts court suggested that a double jeopardy claim should be submitted,” ante, at 303, n. 5, the Court ignores its own earlier statement that “[b]efore the jury trial commenced, Lydon moved to dismiss the charge against him on the ground that no evidence of the element of intent had been presented at the bench trial,” ante, at 298. Indeed, the very opinion of the Massachusetts Supreme Judicial Court announcing the proper procedure noted that Lydon had moved to dismiss the case on double jeopardy grounds before the de novo court, Lydon v. Commonwealth, 381 Mass. 356, 357, 366-367, 409 N. E. 2d 745, 747, 752 (1980), and, on a petition for review of the jury-trial judge’s denial of that motion, agreed that “the jury trial session is the appropriate forum for consideration of double jeopardy claims asserted after a bench trial.” Id., at 366-367, 409 *324N. E. 2d, at 752. Accordingly, the Court’s effort to avoid the conclusion that Jackson v. Virginia, 443 U. S. 307 (1979), authorized the federal ha-beas court to consider the sufficiency of the evidence at Lydon’s first trial is unavailing.
Of course the features of the two-tier system that I have identified might not be advantageous to every defendant; indeed, the nature of a case or the strength of the government’s evidence may be such that those characteristics could prove undesirable or unfair to the defendant. Ac*326cordingly, I find it significant that those aspects of the Massachusetts two-tier system that depart from a traditional trial are not forced on the defendant. Because the Commonwealth permits a defendant to decide for himself whether to accept the burdens of the two-tier proceeding in exchange for its benefits, I need not decide whether a system that allows no such choice would also survive constitutional scrutiny. Cf. Ludwig v. Massachusetts, 427 U. S., at 632 (Stevens, J., dissenting). See also Ward v. Village of Monroeville, 409 U. S. 57 (1972).