(dissenting):
For the following reasons I dissent. The majority opinion is premised on the concept the prosecution should be given a second opportunity to establish an element of a crime, after it had previously failed, in the first proceeding, to introduce admissible evidence of such element. The majority opinion states:
“. Where the prosecution possesses evidence conducive to that end [to establish proof], but due to an erroneous ruling of law, presents it in violation of an evidentiary rule of the court, justice requires that a further opportunity be provided. . . . ”
This statement does not accord with the apparent facts. The majority opinion could be interpreted as stating the prosecution possessed an authenticated copy of defendant’s prior felony conviction, and through an erroneous ruling of the trial court, presented only an unauthenticated copy of the judgment. Now, justice requires that a “further opportunity” be provided to the prosecution to present the evidence it possessed?
The record shows the prosecution failed to adhere to the requirements of Rule 63(17) and Rule 68, Utah Rules of Evidence; the result was the evidence introduced, and erroneously admitted by the trial court, was inadmissible hearsay. The admissible evidence is clearly not sufficient to establish an essential element of the crime charged. Consequently, defendant is entitled to an acquittal, because of insufficiency of the evidence. As held by the United States Supreme Court:
“. . the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only ‘just’ remedy availa*350ble for that court is the direction of a judgment of acquittal. . . . 1
In Burks the court emphasized:
“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow ‘the State ... to make repeated attempts to convict an individual for an alleged offense,’ since ‘[t]he constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.’ [Citations].2”
Burks has been widely followed. State v. Bannister, Hawaii, 594 P.2d 133 (May 1, 1979) is particularly apt. There the testimony of the key witness was based upon another person’s notation on an invoice. The invoice was not in evidence, and none of the hearsay exceptions applied. Consequently, the testimony was inadmissible.
Because the testimony of the key witness was the only testimony which would support the conviction, the State failed to prove, beyond a reasonable doubt, every element of the crime.
“Where the judgment is reversed for insufficiency of the evidence, as opposed to reversal for trial error, the Double Jeopardy Clause of the Fifth Amendment prevents a new trial. The appellant does not waive his right by moving for a new trial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
“The public policy behind the double jeopardy rule is ‘. . .to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.’ Id. at 11, 98 S.Ct. at 2147, citing Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).”
Again, in United States v. Santora et al., [600 F.2d 1317 (July 18, 1979)] the Court speaking through Hufstedler, C. J., cited a case companion to Burks, viz., Greene v. Massey (cited below), to reverse convictions based on insufficient evidence. The Court said, at page 1322:
“The convictions of Cohn, Sohn, and Upton must be reversed because the admissible evidence against them was plainly insufficient. Each of their convictions was based almost wholly on evidence obtained by the illegal taps. And each of these defendants has standing to object to the illegal interceptions. Cohn’s conviction was based solely on four communications intercepted by wiretapping pursuant to invalid Order No. 4700. These conversations, which occurred on May 5 and May 7, 1975, at most raise some suspicion that Cohn was involved in narcotics traffic with Paul Harmon. Since Cohn’s conversations must be suppressed, his conviction must be reversed for insufficient evidence. Because Cohn cannot be retried (Greene v. Massey (1978) 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15), we need not reach the question whether his right to a speedy trial was violated.”
Minnesota and Tennessee have applied Burks and Greene. In State v. Alexander, Minn., 281 N.W.2d 349, 354 (May 18, 1979) the Court said:
“The district court found that the admission of certain hearsay evidence was prejudicial and that the state had thus failed to prove every element of its case. Because we believe that a retrial in this case may violate the double jeopardy clause of the Federal constitution, see, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), we affirm the district court’s reversal of the judgment of conviction on both counts.”
And, in Sloan v. State of Tennessee, Tenn., 584 S.W.2d 461, 472 (Nov. 28, 1978, cert. *351denied, July 2, 1979 the Court reasoned, as follows:
“We find that the procedures used in the identification of defendant Charles Sloan were so suggestive that they gave rise to a very substantial likelihood of irreparable misidentification and that the in-court identification of him by Mrs. Evelyn Bullard should have therefore been excluded. Since there was no other evidence upon which defendant could have been convicted, we hold that his conviction is reversed.
“When a reversal is on the basis of insufficient evidence to support a verdict, the reviewing court must direct a judgment of acquittal, rather than order a new trial. Otherwise, the Double Jeopardy Clause of the United States Constitution would be violated. This was the holding of the United States Supreme Court in Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, decided the same day, the court held that this principle applies to state criminal proceedings.
“Our reversal of defendant’s conviction is clearly based on insufficient evidence to support a verdict, and we therefore remand this cause to the Williamson County Criminal Court for entry of a judgment of acquittal. Costs incurred on appeal are assessed against the State.
The precise effect of the majority opinion is to afford the prosecution another opportunity to supply, if it could, additional evidence [an authenticated copy of defendant’s conviction of a felony in Colorado], which it failed to produce in the first proceeding. The Double Jeopardy Clause precludes a second trial under such circumstances.
The majority opinion classifies the circumstances of this case as one not falling within the ambit of the Double Jeopardy Clause, by characterizing the matter as merely an error in the proceedings. The interpretation of the majority opinion is not in accord with the Burks opinion. The majority perceives Burks as ruling the Double Jeopardy Clause never applies if there be in the record an incorrect receipt or rejection of evidence. Such a literal interpretation appears based on a portion of one paragraph without consideration of the opinion in its entirety. The Court stated:
“. . In short, reversal for trial error, as distinguished from evidentiary 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, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. 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 [supply].3 Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have ever 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.4
*352The critical issue of Burks is whether there has been a failure of proof at the trial and not the reason for such failure. The question is one solely of law, has the prosecution sustained its burden of proof by presenting legally sufficient evidence to prove defendant’s guilt beyond a reasonable doubt or was the government’s case so lacking the matter should not have been submitted to the jury. If an appellate court be satisfied the evidence was sufficient to support the verdict it does not violate the Double Jeopardy Clause under such circumstances to remand the case for a fair, error-free trial.5
In the instant case, the prosecution had one fair opportunity to present proof establishing each element of the alleged crime; it failed to establish one element by legally admissible evidence. The Double Jeopardy Clause precludes affording the prosecution a second opportunity to muster the evidence it failed to supply in the first proceeding.
. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978).
. 437 U.S. 11, 98 S.Ct. 2147.
. In a footnote the Court stated that in holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt.
. 437 U.S. 15-16, 98 S.Ct. 2149-2150.
. Greene v. Massey, 437 U.S. 19, 25, 98 S.Ct. 2151, 2155, 57 L.Ed.2d 15 (1978).