(dissenting).
The court may be right. Certainly Judge Breyer’s opinion deals scrupulously with the issues, and I do not question the intelligence and logic reflected in my colleagues’ decision. Yet I see this as one of those cases where the relentless application of secondary precepts developed in other, very different settings leads ultimately to a foolish and wrong result — a result not dictated by the Constitution, and one which has the unfortunate effect of undermining a useful and fair state procedure.
*11My colleagues are sensitive to the latter problem. The court’s opinion reflects its deep concern over the harm to the Massachusetts two-tier system which may now occur, as a result of our judgment, from frivolous petitions and appeals alleging insufficiency of evidence and double jeopardy. Whether there are ways around this, through more elaborate waiver forms or other mechanisms, I do not know. I do know that the Massachusetts system is likely to become more costly and less coherent as a result of our decision — at a time when virtually every commentator, including the Chief Justice of the United States, is decrying the diminishing ability of both state and federal judicial systems to cope with the caseload. Moreover, I fear that decisions such as this reflect an ongoing, perhaps irreversible tendency of federal courts to treat subsidiary principles announced in constitutional decisions as if they were propositions of plane geometry, and to extend and apply them rigidly, with the unfortunate result that healthy experimentation and diversity at state and local levels is made increasingly less possible.
Here, building on Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), our court interrupts the practical functioning of Massachusetts’ two-tier system — a fair and useful system which the state offers as an elective option to criminal defendants charged with misdemeanors and lesser felonies. In Burks, the Court held that the double jeopardy clause prohibits a second trial following the reversal of a conviction obtained with insufficient evidence. Here, we fasten on the fact that a defendant convicted at a first-tier bench trial has no way to avoid a second-tier trial if he wishes to challenge the state’s case either on the facts or the law: thus he must be “tried again” even if the earlier proceeding at which he was convicted was lacking in sufficient evidence. To avoid this, we insist that he and other first-tier convicted defendants must be allowed to raise their insufficiency claims before the second trial so they can be discharged if they prevail. We thus throw a substantial monkey wrench in the two-tier system whose distinguishing feature and, indeed, supreme virtue is that it offers a second trial, not an appeal on the law.
I would contend that the reasonable way to analyze the double jeopardy issue in this case is to look at the Massachusetts system as a whole, not in isolated fragments. If this is done, I see little ground for serious concern that the policy underlying the double jeopardy clause is being offended.
To begin with, the two-tier system was not imposed on the defendant. Massachusetts defendants may elect to receive an initial jury trial followed by a conventional appeal. There is thus no issue of Massachusetts forcing Lydon to accept a system which provides, in the second stage, for a de novo trial rather than a conventional appeal.
Second, the two-tier procedure Lydon elected affords all the most basic double jeopardy protection that would be afforded in a more conventional system. As Massachusetts has long recognized, a judgment of acquittal at the first tier precludes later prosecution at the second level. And it is well established that trial de novo following a first-tier conviction does not ordinarily offend the double jeopardy clause. Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976).
Third, the two-tier system affords distinct benefits to a criminal defendant not present in the more conventional system. These benefits flow from the very same aspect of the system which Lydon criticizes. Under the two-tier system, a defendant receives two full opportunities to be acquitted on the facts. The conventional American criminal system, unlike that in some European countries, permits virtually no appellate review of factual determinations. The opportunities now afforded to suppress evidence on legal and constitutional grounds do not help on this score: indeed, the most worrisome ground for a possible miscarriage of justice — misidentifieation by a witness — remains largely untouched by the jurisprudence of the past generation. The Massachusetts two-tier system, however, al*12lows the possibly innocent defendant two opportunities for acquittal on the facts. This is a benefit of no small dimension. For defendants generally, it is far more meaningful than retaining a right to appeal from the first trial on grounds of insufficient evidence. In foregoing the latter, convicted defendants gain the right not to be convicted finally unless the prosecution twice proves their guilt beyond a reasonable doubt.
Fourth, while the de novo trial allows the prosecution to put in a different and perhaps stronger case, the same is of course true for the defendant. Bearing in mind that, in the usual case, the first-tier court can be expected to acquit where the evidence is insufficient, it will be the rare ease where a convicted defendant with a valid insufficiency claim is forced to stand trial for a second time. The far more usual case will be that of the defendant convicted at the first tier on legally sufficient (if factually close) evidence. Under the Massachusetts system, that defendant gets the distinct benefit of a brand new trial, in which he has all the tactical benefits of knowing the prosecution’s case and shifting his defenses to meet it.
Fifth, in the rare case of someone like Lydon who was convicted at the first tier on insufficient evidence, the defendant has no lack of opportunities for later vindication: first, he may be acquitted on motion after the prosecution puts in its case in the de novo trial, assuming the judge feels the prosecution’s evidence is insufficient. Second, the jury may acquit him at the second trial. Third, he may later win on an insufficiency claim relative to the second trial in a Massachusetts appellate court. While technically he is “tried again”, the second stage proceeding can be regarded as but an enlarged, fact-sensitive part of a single, continuous course of judicial proceedings during which, sooner or later, a defendant receives more — rather than less — of the process normally extended to criminal defendants in this nation. To deny a state the right so to structure its optional criminal process is to approach saying that the Constitution imposes for all time a single model of criminal process.
Sixth, Lydon argues that the second-tier trial is unfair because it allows the prosecution to improve on its case — to put in more evidence. As noted, any disadvantage would seem to be more than outweighed by the advantage to most defendants of being able to improve on their defense in the second trial. But beyond this, the likelihood of the prosecution’s obtaining additional evidence would seem slight. The prosecution has every incentive to put in its best evidence in the first tier. If it does not, and acquittal results, it can never proceed again. Moreover, the stronger the showing, the more likely the defense is to accept a first-round conviction as final, without seeking a de novo trial. It follows that appellate review of the second conviction will commonly provide an effective remedy in the rare instance in which both trial courts and the jury improperly assess the sufficiency of the evidence. With these safeguards in place, there is every reason to believe that the two-tier system — if permitted to function without interruption — will vindicate claims of evidentiary insufficiency-
Lydon’s predicament illustrates the point. The court concludes that the evidence introduced at Lydon’s trial failed to pass muster under the rule of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Yet the two-tier system, were it permitted to run its course, would surely correct the error. Of course, part of the process involves Lydon’s submission to a second trial. But the second trial typically poses little threat that the Commonwealth will present new, more substantial evidence; indeed, a review of the record suggests that there is probably no effective way to supply evidence of intent. And even if this were to occur in isolated cases, the result is hardly so unfair, when weighed against the system’s countervailing benefits to defendants as a whole, as to warrant restructuring the whole system.
Finally, I return to the point first made— that the two-tier system was not imposed on Lydon. Lydon’s submission to a second *13trial is part of the bargain he struck with the Commonwealth when he chose the two-tier system with its distinct advantages as well as this one disadvantage. The Commonwealth requires a defendant who wishes to be tried in the two-tier system to sign a written waiver of his right to trial by jury. At the time Lydon signed the waiver he was represented — as the Commonwealth requires1 — by an attorney whose competence is undisputed. Any attorney, and indeed most clients, would know that in choosing the two-tier system, a defendant surrenders his right to challenge legal errors committed in the initial proceeding; in place of this right, he obtains the more important right to require a trial de novo, after which, of course, there is the conventional appellate process. See Mann v. Commonwealth, 359 Mass. 661, 664, 271 N.E.2d 331, 333-34 (1971). Lydon has never asserted that he lacked knowledge of the limited right of appeal in the two-tier system. Thus, we may assume that he had a sufficient practical understanding of the consequences of his choice.
This court nonetheless holds that Lydon’s intelligent, informed decision to be tried in the two-tier system did not constitute a waiver of his right to challenge the sufficiency of the evidence at his bench trial. The court does not conclude that the right is so fundamental as to defy any form of waiver. Rather it holds that Lydon’s decision did not constitute an “intentional relinquishment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). In so concluding, the court implies that a written waiver of the right would pass constitutional muster.
Thus, the court invites the Commonwealth to adopt a procedure that insofar as I can determine, would have no practical impact on a defendant’s choice of the two-tier system. Under the suggested written waiver procedures, a defendant would rely heavily on the advice and expertise of his attorney in deciding whether to waive his right to challenge evidentiary sufficiency. In making this strategic choice, the attorney would be called on to weigh precisely the same factors that Lydon’s attorney presumably weighed in this case. The effect of the present opinion is to create the possibility of a host of new technicalities which may vitiate the practical usefulness of the de novo system. I would hold Lydon to the consequences of his choice.
In conclusion, I fear that the court’s decision is a further step in locking the states into rigid, formalistic criminal procedures, without regard to the actual justice or injustice of a given system, merely to satisfy refined, logical principles derived from prior cases decided in other contexts. Such an approach provides employment for attorneys, increases the expense of justice, and enlarges the possibility that a guilty person may get off on a technicality. It does little to advance the cause of justice. The Massachusetts two-tier system must be viewed as a whole, not forced through a strainer developed from cases dealing with a different system. If so viewed, I believe that it does not create double jeopardy. What it does do is provide a practical trial option with many advantages to both sides.
. The Commonwealth requires defendants to be represented by counsel at the time they choose the two-tier system unless they have waived the right to counsel. See Mass.Gen. Laws ch. 218, § 26A.