dissenting in part and concurring in part:
The appellee, Marcus Angelo Boone, was convicted on two counts of receiving stolen goods. The only evidence adduced at trial to support these convictions was illegally seized at the appellee’s apartment. The majority holds that since the introduction of the tainted evidence constituted trial error, the case must be remanded for retrial even though the evidence remaining after deduction of the inadmissible material is legally insufficient. I disagree.
In Burks v. United States, 437 U. S. 1 , 98 S. Ct. 2141 (1978), the Supreme Court held that where an appellate court rules that evidence adduced in a criminal proceeding is insufficient to convict, the Double Jeopardy Clause mandates the direction of a judgment of acquittal. Where there has been a trial error, however, the Court held that the proper remedy is remand and retrial. In holding that under the circumstances of this case the State is entitled to reprosecute the appellee, the majority has obfuscated the vital distinction between evidentiary insufficiency and trial error, and totally undermined the teachings of Burks, supra.
In distinguishing trial error1 from evidentiary insufficiency, the Supreme Court in Burks stated:
In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute *19a 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____Id
Applying this distinction to the facts of the instant case, it is readily apparent that something more than mere trial error is involved. Here, reversal of the trial court’s judgment necessarily constitutes “a decision to the effect that the government has failed to prove its case” because exclusion of the tainted material leaves the record virtually devoid of incriminating evidence. The proper remedy is therefore acquittal.
This result is fully consistent with any reasonable interpretation of the Burks principle. If this case involved only the erroneous admission of evidence, then under the Burks principle the appropriate remedy would be retrial. As the Burks Court noted, when trial error occurs, “the accused has a strong interest in obtaining a fair readjudication of his guilt free from error____” Id Thus, even if the remaining evidence were sufficient to convict, a remand of the case would be required. However, where, as here, the “trial error” results in an insufficiency of evidence, the Burks principle mandates an appellate reversal. Again, as the Court in Burks pointed out, where there has been a failure of proof at trial “the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.” Id.
The majority here, however, contends that the State was somehow denied its “one fair opportunity” to offer proof. The *20majority argues essentially that, “The prosecution, ... in proving its case is entitled to rely upon the correctness of the rulings of the court and proceed accordingly.” Such a proposition is preposterous on its face. If in the instant case the State had not introduced the tainted material and the appellee had been convicted on the basis of the other evidence, under Burks, supra, the direction of a judgment of acquittal would have been mandatory. Why should a different result obtain where the tainted material is introduced? Clearly, the effect of the majority’s decision is to encourage the prosecution to introduce tainted material in all criminal prosecutions where the evidence would otherwise be weak. If the trial court accepts the material into evidence, the State is automatically assured of a second opportunity to prosecute the accused in the event of an appeal. Conceivably, the State could exploit this device to secure several opportunities to prosecute the accused and present additional evidence at each successive proceeding. Such a scheme plainly subverts the purposes underlying the exclusionary rule. Furthermore, under the majority’s approach, if the trial court improperly admitted a coerced confession and the evidence were otherwise insufficient, the State on appeal would be granted the opportunity to reprosecute the case. This would permit the State to benefit from its own misconduct.
Moreover, the State’s opportunity to offer proof was far more generous here than in the ordinary case where evidentiary insufficiency compels reversal. If this case had involved merely a failure of proof, the State would have had no opportunity to correct its failure because the motion for judgment of acquittal would have been made only after the close of the State’s case. Rule 755. Here, however, the appellee’s motion to exclude the tainted material afforded the State adequate notice of a potential flaw in its case while there was still time to produce additional evidence. In this instance, the State chose not to avail itself of this opportunity.
In an attempt to defend its position, the majority argues that a contrary result would require the State to marshall every piece of relevant and competent evidence and consider every evidentiary ruling by the trial court to be erroneous. *21It is submitted, however, that the interests of justice are best served by just such a requirement. It is the ultimate burden of the State to offer evidence sufficient to convict. If the State chooses to rely upon the rulings of the trial court it must assume the risk that such rulings will be reversed on appeal.
Finally, for all of its concern over the orderly and expeditious administration of justice, the majority has neglected to even mention the issue of fairness to the accused. The Double Jeopardy Clause embodies a fundamental principle of criminal justice. It is inconceivable that the framers of the Constitution would have intended that its proscription should be suspended for the sole purpose of permitting the introduction of additional evidence by the prosecution. The appellee here has been tried once and has successfully met the challenge demanded of him by law. The State, on the other hand, has failed to meet its burden of proof. It would be fundamentally unfair to permit the State the opportunity at this point to correct its own failure at the appellee’s expense.
For the above stated reasons I must respectfully dissent.
. The Supreme Court in Burks, at n. 8, lists examples of trial error: improper instruction, absence of the accused during a portion of the trial, *19improper hearsay testimony received, insufficient indictment, improper sentence. In the text of Burks, at 2149, the Court further describes trial error as “incorrect receipt or rejection of evidence, incorrect instruction or prosecutorial conduct.” I submit that the Court is describing in all such instances the kind of error which does not have the effect of creating an evidentiary insufficiency on appellate review. If not, why did the Supreme Court expressly reserve the question in Greene v. Massey, 437 U. S. 19, 98 S. Ct. 2151, 2155 n. 9 (1978)?