with whom Justice Marshall joins, concurring in part and dissenting in part.
Petitioner was indicted and tried on two counts of distributing a controlled substance. He claims that the prosecution failed to present constitutionally sufficient evidence to sustain its case. The jury, perhaps due to the alleged inadequacy of the evidence, was unable to reach a verdict and was therefore dismissed. As a result of today’s decision, petitioner will be tried again on the same indictment before a new jury, notwithstanding the fact that, as we must assume, he *327was entitled to acquittal as a matter of law. It seems to me quite clear that he will thereby “be subject for the same offence to be twice put in jeopardy for life or limb.” U. S. Const., Arndt. 5. Yet the Court declares that, despite appearances, petitioner’s trial did not really end with the dismissal of the jury and that therefore his imminent retrial is not really a new trial at all. In my judgment, common sense and the Double Jeopardy Clause are not so incompatible.
I agree with the Court that petitioner’s claim is appealable under 28 U. S. C. § 1291 and that the case therefore turns on whether, if petitioner’s sufficiency-of-the-evidence claim is valid, retrial is barred. Relying on cases in which we have held that “retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause,” ante, at 324, the Court asserts that “the failure of the jury to reach a verdict is not an event which terminates jeopardy,” ante, at 325. In so reasoning, the Court, in my view, improperly ignores the realities of the defendant’s situation and relies instead on a formalistic concept of “continuing jeopardy.” See Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 315-316 (1984) (Brennan, J., concurring in part and concurring in judgment). Apparently, under the Court’s approach, only an actual judgment of acquittal, or an unreversed conviction, would “terminate” jeopardy and thereby bar retrial. Accordingly, a defendant who is constitutionally entitled to an acquittal but who fails to receive one — because he happens to be tried before an irrational or lawless factfinder or because his jury cannot agree on a verdict — is worse off than a defendant tried before a factfinder who demands constitutionally sufficient evidence. Indeed, he is worse off than a guilty defendant who is acquitted due to mistakes of fact or law. See Arizona v. Rumsey, 467 U. S. 203, 211 (1984). I do not believe this paradoxical result is faithful to the principle we have repeatedly reaffirmed that the Double Jeopardy Clause “precludes retrial where the State has failed *328as 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). See Justices of Boston Municipal Court v. Lydon, supra, at 314.
Instead, as I explained at greater length in Lydon, I believe a common-sense approach to claims of “continuing jeopardy” requires a court to ask, first, whether an initial proceeding at which jeopardy attached has now objectively ended, and, second, whether a new proceeding would violate the Constitution. 466 U. S., at 320-322. In answering the first question, we should look to the fundamental policies of the Double Jeopardy Clause, “namely, its concern that repeated trials may subject a defendant ‘to embarrassment, expense and ordeal and compe[l] 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.’ . . . 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.” Id., at 320 (quoting Green v. United States, 355 U. S. 184, 187-188 (1957)). Employing that analysis, I have little trouble concluding that when a jury, unable to reach a verdict, is dismissed and a mistrial is declared, a defendant’s trial has come to an end. An entirely new trial on the same indictment before a new jury, presumably with much of the same evidence, will plainly subject the defendant to the kinds of risks and costs that the Double Jeopardy Clause was intended to prohibit. See Arizona v. Washington, 434 U. S. 497, 503-504 (1978).1 I therefore *329conclude that the declaration of a mistrial “terminated” one proceeding against petitioner.2
In so concluding, I do not reject the longstanding rule, emphasized by the Court, that, in cases of “manifest necessity,” retrial may be permitted despite a mistrial. “The fact that a trial has ended does not . . . complete the constitutional inquiry; the Court has concluded [in several contexts] that strong policy reasons may justify subjecting a defendant to two trials in certain circumstances notwithstanding the literal language of the Double Jeopardy Clause.” Lydon, 466 U. S., at 308-309. Until the decision in Lydon, however, we did not seek to justify such a retrial by pretending that it was not really a new trial at all but was instead simply a “continuation” of the original proceeding. See ibid. In Arizona v. Washington, supra, for example, we reviewed the unusual *330circumstances that might permit retrial after a mistrial order. We did not, however, seek to evade the commonsense fact that such an order “terminates” the first trial. We explained that, “[u]nlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.” 434 U. S., at 505 (emphasis added). In short, the question whether a trial has ended is distinct from the question whether a new trial is permissible.
In answering the second question, I believe the mistrial cases on which the Court relies so heavily are quite beside the point. It is, of course, true, as the Court explains, that we have long held “ ‘that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial.’” Ante, at 324 (quoting Arizona v. Washington, supra, at 509). But that proposition demonstrates only that petitioner’s new trial is not constitutionally barred simply because the original jury was unable to reach a verdict. Petitioner’s objection to the new trial is not, however, based on the fact that his trial ended with a hung jury. Instead, he contends that retrial is prohibited because the prosecution failed to present constitutionally sufficient evidence at the trial. That contention is, in my view, correct under Burks v. United States, 437 U. S. 1, 15-16 (1978), notwithstanding the fact that, in contrast to the situation in that case, no court has yet declared the evidence insufficient. The fundamental principle underlying Burks, and indeed most of our double jeopardy cases, is that the prosecution is entitled to one, and only one, full and fair opportunity to convict the defendant. When the prosecution has failed to present constitutionally sufficient evidence, it cannot complain of unfairness in being denied a second chance, and the interests in finality, shared by the defendant and society, strongly outweigh the reasons for a retrial. See ibid.; see also Arizona v. Washington, supra, at 503-504. These principles are no less applicable in *331a case in which the inadequacy of the evidence is not recognized by the trial judge.
Indeed, in Tibbs v. Florida, 457 U. S. 31 (1982), we explained that, unless a defendant can obtain review of a sufficiency claim prior to retrial, the protections established in Burks and its successors would become illusory. In that case, the Court held that state appellate reversal of a conviction as against the weight of the evidence does not bar retrial under Burks. In response to the fear expressed by the dissent that state appellate courts could mask reversals for insufficiency by characterizing them as based on the weight of the evidence, the Court explained:
“We held in Jackson [v. Virginia, 443 U. S. 307 (1979),] that the Due Process Clause forbids any conviction based on evidence insufficient to persuade a rational factfinder of guilt beyond a reasonable doubt. The Due Process Clause, in other words, sets a lower limit on an appellate court’s definition of evidentiary sufficiency. This limit, together with our belief that state appellate judges faithfully honor their obligations to enforce applicable state and federal laws, persuades us that today’s ruling will not undermine Burks.” 457 U. S., at 45 (footnote omitted).
The reasoning of Tibbs necessarily presupposes that the Double Jeopardy Clause bars retrial after the prosecution’s failure of proof at the first trial — even if that failure of proof is as yet judicially undeclared. If this were not so, the “masking” problem discussed in Tibbs would be irrelevant: the state appellate court could remand for retrial without addressing the insufficiency claim and the defendant would never be able to challenge the evidence at the first trial. See also id., at 51 (White, J., dissenting).
In sum, I believe that when a jury has been dismissed because of its inability to reach a verdict, the defendant’s trial has ended, in law as in common sense. A defendant *332who contends that the evidence at that trial was constitutionally insufficient, and that he was therefore entitled to a judgment of acquittal as a matter of law, plainly has a “colorable” claim that a second trial would violate the Double Jeopardy Clause and the trial judge’s denial of the claim is therefore . immediately appealable. And, finally, if the reviewing court decides the evidence was in fact inadequate, I believe further proceedings against the defendant for the same offense are barred under the rule in Burks. I would therefore remand the case for consideration of petitioner’s sufficiency claim on the merits.
In contrast to a defendant tried in a two-tier system like that at issue in Justices of Boston Municipal Court v. Lydon, 466 U. S. 294 (1984), a defendant in petitioner's circumstances will approach his trial on the assumption that it will be his only opportunity to influence the factfinder in his favor. That expectation will result in a maximum dedication of the defendant’s resources to the initial proceeding, will deprive him of the ability to take strategic advantage of his knowledge that he will have another factfinding opportunity, and will engender in him a significant degree of anxiety during the course of the first trial. Accordingly, in a traditional *329trial system, an event that ends the first proceeding, such as the declaration of a mistrial, has significance in terms of the policies underlying the Double Jeopardy Clause that it does not have in the two-tier context. Cf. Lydon, supra, at 320-321 (Brennan, J., concurring in part and concurring in judgment).
By identifying the point at which a trial has terminated, I believe we also determine the point at which a defendant should be able to obtain review of a claim that a new trial is barred. See Justices of Boston Municipal Court v. Lydon, supra, at 320-321 (Brennan, J., concurring in part and concurring in judgment). Such a claim is plainly ripe when the first proceeding has ended and a new one is imminent. As the Court explains, a “colorable” double jeopardy claim “contest[s] the very power of the Government to bring a person to trial, and the right would be significantly impaired if review were deferred until after the trial.” Ante, at 320. See Abney v. United States, 431 U. S. 651, 662 (1977).
Indeed, the Court’s conclusion in this regard makes its holding on the merits that much more bewildering. In the context of discussing the jurisdictional question, the Court states that “[pjetitioner’s first trial had ended and his second trial had been rescheduled before he asserted his double jeopardy claim to bar retrial.” Ante, at 322. Cf. post, at 335-337 (Stevens, J., dissenting). Yet, on the merits, it rules “that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected.” Ante, at 326. Apparently, the proceedings petitioner will experience constitute two trials for jurisdictional purposes but only one trial for double jeopardy purposes.