Evans v. Michigan

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

EVANS v. MICHIGAN

CERTIORARI TO THE SUPREME COURT OF MICHIGAN

No. 11–1327. Argued November 6, 2012—Decided February 20, 2013
After the State of Michigan rested its case at petitioner Evans’ arson
trial, the court granted Evans’ motion for a directed verdict of acquit-
tal, concluding that the State had failed to prove that the burned
building was not a dwelling, a fact the court mistakenly believed was
an “element” of the statutory offense. The State Court of Appeals re-
versed and remanded for retrial. In affirming, the State Supreme
Court held that a directed verdict based on an error of law that did
not resolve a factual element of the charged offense was not an ac-
quittal for double jeopardy purposes.
Held: The Double Jeopardy Clause bars retrial for Evans’ offense.
Pp. 4−17.
(a) Retrial following a court-decreed acquittal is barred, even if the
acquittal is “based upon an egregiously erroneous foundation,” Fong
Foo v. United States, 369 U. S. 141, 143, such as an erroneous deci-
sion to exclude evidence, Sanabria v. United States, 437 U. S. 54,
68−69; a mistaken understanding of what evidence would suffice to
sustain a conviction, Smith v. Massachusetts, 543 U. S. 462, 473; or a
“misconstruction of the statute” defining the requirements to convict,
Arizona v. Rumsey, 467 U. S. 303, 211. Most relevant here, an ac-
quittal encompasses any ruling that the prosecution’s proof is insuffi-
cient to establish criminal liability for an offense. See, e.g., United
States v. Scott, 437 U. S. 82, 98; Burks v. United States, 437 U. S. 1,
10. In contrast to procedural rulings, which lead to dismissals or
mistrials on a basis unrelated to factual guilt or innocence, acquittals
are substantive rulings that conclude proceedings absolutely, and
thus raise significant double jeopardy concerns. Scott, 437 U. S., at
91. Here, the trial court clearly “evaluated the [State’s] evidence and
determined that it was legally insufficient to sustain a conviction.”
United States v. Martin Linen Supply Co., 430 U. S. 564, 572. Evans’
2 EVANS v. MICHIGAN

Syllabus

acquittal was the product of an erroneous interpretation of governing
legal principles, but that error affects only the accuracy of the deter-
mination to acquit, not its essential character. See Scott, 437 U. S.,
at 98. Pp. 4−6.
(b) The State Supreme Court attempted to distinguish this Court’s
cases on the ground that they involved “the sufficiency of the factual
elements of the charged offense,” while Evans’ case concerned “an er-
ror of law unrelated to [his] guilt or innocence,” but this Court per-
ceives no such difference. This case, like the Court’s previous ones,
involves an antecedent legal error that led to an acquittal because
the State failed to prove a fact it was not actually required to prove.
The State and the United States claim that only when an actual ele-
ment of the offense is resolved can there be an acquittal of the of-
fense, but Evans’ verdict was based on something that was conceded-
ly not an element. Their argument reads Martin Linen too narrowly
and is inconsistent with this Court’s decisions since then. Martin
Linen focused on the significance of the District Court’s acquittal
based on a nonculpability determination, and its result did not de-
pend on defining the “elements” of the offense. Culpability is the
touchstone, not whether any particular elements were resolved or
whether the nonculpability determination was legally correct. Scott,
437 U. S., at 98. Pp. 7−11.
(c) Additional arguments the State and the United States raise in
support of the lower court’s distinction are unpersuasive. The State
claims that unless an actual element of the offense is resolved by the
trial court, the only way to know whether the court’s ruling was an
“acquittal” is to rely upon the court’s label, which would wrongly al-
low the form of the trial court’s action to control. However, the in-
stant decision turns not on the form of the trial court’s action but on
whether that action serves substantive or procedural purposes. The
State and the United States argue that if the grounds for an acquittal
are untethered from the actual elements of the offense, a trial court
could issue an unreviewable order finding insufficient evidence to
convict for any reason at all. But this Court presumes that courts ex-
ercise their duties in good faith. The State also suggests that Evans
should not be heard to complain when a trial-court error that he in-
duced is corrected and the State wishes to retry him, but most mid-
trial acquittals result from defense motions. The United States
claims that, under Lee v. United States, 432 U. S. 23, Evans was re-
quired to ask the court to resolve whether nondwelling status was an
element of the offense before jeopardy attached. However, Lee in-
volved a midtrial dismissal that was akin to a mistrial, while this
case involves a ruling on the sufficiency of the State’s proof.
Pp. 11−14.
 Cite as: 568 U. S. ____ (2013) 3

Syllabus

(d) This Court declines to revisit decisions such as Fong Foo,
Smith, Rumsey, and Smalis v. Pennsylvania, 476 U. S. 140. There is
no reason to believe that the existing rules have become so “unwork-
able” as to justify overruling precedent. Payne v. Tennessee, 501 U. S.
808, 827. And the logic of those cases still holds. As for the objection
that the rule denies the prosecution a full and fair opportunity to
present its evidence to the jury while the defendant reaps a “wind-
fall” from the trial court’s unreviewable error, sovereigns have power
to prevent such situations by disallowing the practice of midtrial ac-
quittals, encouraging courts to defer consideration of a motion to ac-
quit until after the jury renders a verdict, or providing for mandatory
continuances or expedited interlocutory appeals. Pp. 14−16.
491 Mich. 1, 810 N. W. 2d 535, reversed.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, and KAGAN,
JJ., joined. ALITO, J., filed a dissenting opinion.
 Cite as: 568 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 11–1327
_________________

LAMAR EVANS, PETITIONER v. MICHIGAN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MICHIGAN

[February 20, 2013]

JUSTICE SOTOMAYOR delivered the opinion of the Court.
When the State of Michigan rested its case at petitioner
Lamar Evans’ arson trial, the court entered a directed
verdict of acquittal, based upon its view that the State had
not provided sufficient evidence of a particular element
of the offense. It turns out that the unproven “element”
was not actually a required element at all. We must de-
cide whether an erroneous acquittal such as this neverthe-
less constitutes an acquittal for double jeopardy purposes,
which would mean that Evans could not be retried. This
Court has previously held that a judicial acquittal prem-
ised upon a “misconstruction” of a criminal statute is an
“acquittal on the merits . . . [that] bars retrial.” Arizona v.
Rumsey, 467 U. S. 203, 211 (1984). Seeing no meaningful
constitutional distinction between a trial court’s “miscon-
struction” of a statute and its erroneous addition of a
statutory element, we hold that a midtrial acquittal in
these circumstances is an acquittal for double jeopardy
purposes as well.
I
The State charged Evans with burning “other real prop-
erty,” a violation of Mich. Comp. Laws §750.73 (1981).
2 EVANS v. MICHIGAN

Opinion of the Court

The State’s evidence at trial suggested that Evans had
burned down an unoccupied house. At the close of the
State’s case, however, Evans moved for a directed ver-
dict of acquittal. He pointed the court to the applicable
Michigan Criminal Jury Instructions, which listed as the
“Fourth” element of the offense “that the building was not
a dwelling house.” 3 Mich. Crim. Jury Instr. §31.3, p. 31–7
(2d ed., Supp. 2006/2007). And the commentary to the
Instructions emphasized, “an essential element is that
the structure burned is not a dwelling house.” Id., at
31–8. Evans argued that Mich. Comp. Laws §750.72 criminal-
izes common-law arson, which requires that the structure
burned be a dwelling, while the provision under which he
was charged, §750.73, covers all other real property.1
Persuaded, the trial court granted the motion. 491 Mich.
1, 8, 810 N. W. 2d 535, 539 (2012). The court explained
that the “ ‘testimony [of the homeowner] was this was a
dwelling house,’ ” so the nondwelling requirement of
§750.73 was not met. Ibid.
On the State’s appeal, the Michigan Court of Appeals
reversed and remanded. 288 Mich. App. 410, 794 N. W. 2d
848 (2010). Evans had conceded, and the court held, that
under controlling precedent, burning “other real property”
is a lesser included offense under Michigan law, and dis-
——————
1 Mich. Comp. Laws §750.72 (1981), “Burning dwelling house,” pro-

vides: “Any person who wilfully or maliciously burns any dwelling
house, either occupied or unoccupied, or the contents thereof, whether
owned by himself or another, or any building within the curtilage of
such dwelling house, or the contents thereof, shall be guilty of a felony,
punishable by imprisonment in the state prison not more than 20
years.”
And §750.73, “Burning of other real property,” provides: “Any person
who wilfully or maliciously burns any building or other real property, or
the contents thereof, other than those specified in the next preceding
section of this chapter, the property of himself or another, shall be
guilty of a felony, punishable by imprisonment in the state prison for
not more than 10 years.”
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Opinion of the Court

proving the greater offense is not required. Id., at 416,
794 N. W. 2d, at 852 (citing People v. Antonelli, 66 Mich.
App. 138, 140, 238 N. W. 2d 551, 552 (1975) (on rehear-
ing)).2 The court thus explained it was “undisputed that
the trial court misperceived the elements of the offense
with which [Evans] was charged and erred by directing
a verdict.” 288 Mich. App., at 416, 794 N. W. 2d, at 852.
But the court rejected Evans’ argument that the Double
Jeopardy Clause barred retrial. Id., at 421–422, 794 N. W.
2d, at 856.
In a divided decision, the Supreme Court of Michigan
affirmed. It held that “when a trial court grants a defend-
ant’s motion for a directed verdict on the basis of an error
of law that did not resolve any factual element of the
charged offense, the trial court’s ruling does not constitute
an acquittal for the purposes of double jeopardy and re-
trial is therefore not barred.” 491 Mich., at 4, 810 N. W.
2d, at 536–537.
We granted certiorari to resolve the disagreement
among state and federal courts on the question whether
retrial is barred when a trial court grants an acquittal be-
cause the prosecution had failed to prove an “element” of
the offense that, in actuality, it did not have to prove.3
567 U. S. ___ (2012). We now reverse.

——————
2 In other words, the pattern jury instructions were incorrect. The

State later revised them. See 288 Mich. App. 410, 416, n. 3, 794 N. W.
2d 848, 852, n. 3 (2010).
3 Compare 491 Mich. 1, 810 N. W. 2d 535 (2012) (case below), and

State v. Korsen, 138 Idaho 706, 716–717, 69 P. 3d 126, 136–137 (2003)
(same conclusion), and United States v. Maker, 751 F. 2d 614, 624 (CA3
1984) (same), with Carter v. State, 365 Ark. 224, 228, 227 S. W. 3d 895,
898 (2006) (rejecting this distinction), and State v. Lynch, 79 N. J. 327,
337–343, 399 A. 2d 629, 634–637 (1979) (holding double jeopardy
barred retrial after trial court erroneously required extra element).
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Opinion of the Court

II

A

In answering this question, we do not write on a clean
slate. Quite the opposite. It has been half a century since
we first recognized that the Double Jeopardy Clause bars
retrial following a court-decreed acquittal, even if the ac-
quittal is “based upon an egregiously erroneous founda-
tion.” Fong Foo v. United States, 369 U. S. 141, 143 (1962)
(per curiam). A mistaken acquittal is an acquittal none-
theless, and we have long held that “[a] verdict of acquittal
. . . could not be reviewed, on error or otherwise, without
putting [a defendant] twice in jeopardy, and thereby vio-
lating the Constitution.” United States v. Ball, 163 U. S.
662, 671 (1896).
Our cases have applied Fong Foo’s principle broadly. An
acquittal is unreviewable whether a judge directs a jury
to return a verdict of acquittal, e.g., Fong Foo, 369 U. S.,
at 143, or forgoes that formality by entering a judgment of
acquittal herself. See Smith v. Massachusetts, 543 U. S.
462, 467–468 (2005) (collecting cases). And an acquittal
precludes retrial even if it is premised upon an erroneous
decision to exclude evidence, Sanabria v. United States,
437 U. S. 54, 68–69, 78 (1978); a mistaken understanding
of what evidence would suffice to sustain a conviction,
Smith, 543 U. S., at 473; or a “misconstruction of the stat-
ute” defining the requirements to convict, Rumsey, 467
U. S., at 203, 211; cf. Smalis v. Pennsylvania, 476 U. S.
140, 144–145, n. 7 (1986). In all these circumstances, “the
fact that the acquittal may result from erroneous eviden-
tiary rulings or erroneous interpretations of governing
legal principles affects the accuracy of that determination,
but it does not alter its essential character.” United States
v. Scott, 437 U. S. 82, 98 (1978) (internal quotation marks
and citation omitted).
Most relevant here, our cases have defined an acquittal
to encompass any ruling that the prosecution’s proof is
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Opinion of the Court

insufficient to establish criminal liability for an offense.
See ibid., and n. 11; Burks v. United States, 437 U. S. 1,
10 (1978); United States v. Martin Linen Supply Co., 430
U. S. 564, 571 (1977). Thus an “acquittal” includes “a
ruling by the court that the evidence is insufficient to
convict,” a “factual finding [that] necessarily establish[es]
the criminal defendant’s lack of criminal culpability,” and
any other “rulin[g] which relate[s] to the ultimate question
of guilt or innocence.” Scott, 437 U. S., at 91, 98, and n. 11
(internal quotation marks omitted). These sorts of sub-
stantive rulings stand apart from procedural rulings that
may also terminate a case midtrial, which we generally
refer to as dismissals or mistrials. Procedural dismissals
include rulings on questions that “are unrelated to factual
guilt or innocence,” but “which serve other purposes,”
including “a legal judgment that a defendant, although
criminally culpable, may not be punished” because of some
problem like an error with the indictment. Id., at 98, and
n. 11.
Both procedural dismissals and substantive rulings
result in an early end to trial, but we explained in Scott
that the double jeopardy consequences of each differ.
“[T]he law attaches particular significance to an acquit-
tal,” so a merits-related ruling concludes proceedings
absolutely. Id., at 91. This is because “[t]o permit a se-
cond trial after an acquittal, however mistaken the acquit-
tal may have been, would present an unacceptably high
risk that the Government, with its vastly superior re-
sources, might wear down the defendant so that ‘even
though innocent he may be found guilty,’ ” ibid. (quoting
Green v. United States, 355 U. S. 184, 188 (1957)). And
retrial following an acquittal would upset a defendant’s ex-
pectation of repose, for it would subject him to additional
“embarrassment, expense and ordeal” while “compelling
him to live in a continuing state of anxiety and insecurity.”
Id., at 187. In contrast, a “termination of the proceedings
6 EVANS v. MICHIGAN

Opinion of the Court

against [a defendant] on a basis unrelated to factual guilt
or innocence of the offense of which he is accused,” 437
U. S., at 98–99, i.e., some procedural ground, does not pose
the same concerns, because no expectation of finality
attaches to a properly granted mistrial.
Here, “it is plain that the [trial court] . . . evaluated
the [State’s] evidence and determined that it was legally
insufficient to sustain a conviction.” Martin Linen, 430
U. S., at 572. The trial court granted Evans’ motion under
a rule that requires the court to “direct a verdict of acquit-
tal on any charged offense as to which the evidence is
insufficient to support conviction.” Mich. Rule Crim. Proc.
6.419(A) (2012). And the court’s oral ruling leaves no
doubt that it made its determination on the basis of “ ‘[t]he
testimony’ ” that the State had presented. 491 Mich., at 8,
810 N. W. 2d, at 539. This ruling was not a dismissal on
a procedural ground “unrelated to factual guilt or inno-
cence,” like the question of “preindictment delay” in Scott,
but rather a determination that the State had failed to
prove its case. 437 U. S., at 98, 99. Under our precedents,
then, Evans was acquitted.
There is no question the trial court’s ruling was wrong;
it was predicated upon a clear misunderstanding of what
facts the State needed to prove under State law. But that
is of no moment. Martin Linen, Sanabria, Rumsey,
Smalis, and Smith all instruct that an acquittal due to
insufficient evidence precludes retrial, whether the court’s
evaluation of the evidence was “correct or not,” Martin
Linen, 430 U. S., at 571, and regardless of whether the
court’s decision flowed from an incorrect antecedent ruling
of law. Here Evans’ acquittal was the product of an “erro-
neous interpretatio[n] of governing legal principles,” but
as in our other cases, that error affects only “the accuracy
of [the] determination” to acquit, not “its essential charac-
ter.” Scott, 437 U. S., at 98 (internal quotation marks
omitted).
 Cite as: 568 U. S. ____ (2013) 7

Opinion of the Court

B

The court below saw things differently. It identified a
“constitutionally meaningful difference” between this case
and our previous decisions. Those cases, the court found,
“involve[d] evidentiary errors regarding the proof needed
to establish a factual element of the . . . crimes at issue,”
but still ultimately involved “a resolution regarding the
sufficiency of the factual elements of the charged offense.”
491 Mich., at 14–15, 810 N. W. 2d, at 542–543. When a
court mistakenly “identifie[s] an extraneous element and
dismisse[s] the case solely on that basis,” however, it has
“not resolve[d] or even address[ed] any factual element
necessary to establish” the offense. Id., at 15, 20, 810
N. W. 2d, at 543, 546. As a result, the court below rea-
soned, the case terminates “based on an error of law
unrelated to [the] defendant’s guilt or innocence on the ele-
ments of the charged offense,” and thus falls outside the
definition of an acquittal. Id., at 21, 810 N. W. 2d, at 546.
We fail to perceive the difference. This case, like our
previous ones, involves an antecedent legal error that led
to an acquittal because the State failed to prove some fact
it was not actually required to prove. Consider Rumsey.
There the trial court, sitting as sentencer in a capital case
involving a murder committed during a robbery, mistak-
enly held that Arizona’s statutory aggravating factor
describing killings for pecuniary gain was limited to mur-
ders for hire. Accordingly, it found the State had failed to
prove the killing was for pecuniary gain and sentenced the
defendant to life imprisonment. After the State success-
fully appealed and obtained a death sentence on remand,
we held that retrial on the penalty phase question was a
double jeopardy violation.4
——————
4 Under Bullington v. Missouri, 451 U. S. 430 (1981), a capital de-

fendant is “acquitted” of the death penalty if, at the end of a separate
sentencing proceeding, the factfinder concludes that the prosecution
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Opinion of the Court

The only relevant difference between that situation and
this one is that in Rumsey the trial court’s error was called
a “misinterpretation” and a “misconstruction of the stat-
ute,” 467 U. S., at 207, 211, whereas here the error has
been designated the “erroneous addition of [an] extraneous
element to the charged offense.” 491 Mich., at 3–4, 810
N. W. 2d, at 536. But we have emphasized that labels do
not control our analysis in this context; rather, the sub-
stance of a court’s decision does. See Smalis, 476 U. S.,
at 144, n. 5; Scott, 437 U. S., at 96–97; Martin Linen, 430
U. S., at 571. The error in Rumsey could just as easily
have been characterized as the erroneous addition of an
element of the statutory aggravating circumstance: that
the homicide be a murder-for-hire. Conversely, the error
here could be viewed as a misinterpretation of the stat-
ute’s phrase “building or other real property” to exclude
dwellings.5 This is far too fine a distinction to be meaning-
——————
has failed to prove required additional facts to support a sentence of
death. Thus in Rumsey, the trial court’s initial “judgment, based on
findings sufficient to establish legal entitlement to the life sentence,
amounts to an acquittal on the merits and, as such, bars any retrial of
the appropriateness of the death penalty.” 467 U. S., at 211.
5 Indeed, it is possible that this is what the trial court thought it was

doing, not articulating an additional element. The statute criminalizes
burning “any building or other real property, . . . other than those
specified in” the previous section, which criminalizes the burning of a
dwelling house. Mich. Comp. Laws §750.73. In light of the statute’s
phrasing, the trial court interpreted “building or other real property” to
be exclusive of the type of property described in §750.72, although the
Michigan courts have explained that the term is actually meant to be
inclusive. So the trial court decision could be viewed as having given
the statutory “building” element an unduly narrow construction (by
limiting it to nondwellings), just as the trial court in Rumsey gave the
pecuniary-gain provision an unduly narrow construction (by limiting it
to contract killings). Nevertheless, we accept the parties’ and the
Michigan courts’ alternative characterization of the trial court’s error
as the “addition” of an extraneous element. Our observation simply
underscores how malleable the distinction adopted by the Michigan
Supreme Court, and defended by the State and the United States, can
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Opinion of the Court

ful, and we reject the notion that a defendant’s constitu-
tional rights would turn on the happenstance of how an
appellate court chooses to describe a trial court’s error.
Echoing the Michigan Supreme Court, the State and the
United States, as well as the dissent, emphasize Martin
Linen’s description of an acquittal as the “resolution,
correct or not, of some or all of the factual elements of the
offense charged.” 430 U. S., at 571 (emphasis added); see
Brief for Respondent 11–17; see Brief for United States as
Amicus Curiae 11–15 (hereinafter U. S. Brief); see post, at
6–8. They observe that the Double Jeopardy Clause pro-
tects against being twice placed in jeopardy for the same
“offence,” U. S. Const., Amdt. 5, cl. 2, and they note that
an offense comprises constituent parts called elements,
which are facts that must be proved to sustain a convic-
tion. See, e.g., United States v. Dixon, 509 U. S. 688, 696–
697 (1993). Consequently, they argue, only if an actual
element of the offense is resolved can it be said that there
has been an acquittal of the offense, because “ ‘innocence of
the charged offense’ cannot turn on something that is
concededly not an element of the offense.” U. S. Brief 15.
Because Evans’ trial ended without resolution of even one
actual element, they conclude, there was no acquittal.
This argument reads Martin Linen too narrowly, and it
is inconsistent with our decisions since then. Our focus in
Martin Linen was on the significance of a judicial acquittal
under Fed. Rule Crim. Proc. 29. The District Court in
that case had “evaluated the Government’s evidence and
determined that it was legally insufficient to sustain a con-
viction.” 430 U. S., at 572. That determination of noncul-
pability was enough to make the acquittal akin to a jury
verdict; our holding did not depend upon defining the
——————

be. And it belies the dissent’s suggestion, post, at 11 (opinion of ALITO,

J.), that drawing this distinction is “quite easy” here, and that the basis

for the trial court’s ruling could not be subject to “real dispute.”

10 EVANS v. MICHIGAN

Opinion of the Court

“elements” of the offense. As we have explained, supra,
at 5–6, Scott confirms that the relevant distinction is
between judicial determinations that go to “the criminal
defendant’s lack of criminal culpability,” and those that
hold “that a defendant, although criminally culpable, may
not be punished because of a supposed” procedural error.
437 U. S., at 98. Culpability (i.e., the “ultimate question of
guilt or innocence”) is the touchstone, not whether any
particular elements were resolved or whether the deter-
mination of nonculpability was legally correct. Id., at 98,
n. 11 (internal quotation marks omitted).
Perhaps most inconsistent with the State’s and United
States’ argument is Burks. There we held that when a
defendant raises insanity as a defense, and a court decides
the “Government ha[s] failed to come forward with suffi-
cient proof of [the defendant’s] capacity to be responsible
for criminal acts,” the defendant has been acquitted be-
cause the court decided that “criminal culpability ha[s] not
been established.” 437 U. S., at 10. Lack of insanity was
not an “element” of Burks’ offense, bank robbery by use of
a dangerous weapon. See 18 U. S. C. §2113(d) (1976 ed.).
Rather, insanity was an affirmative defense to criminal
liability. Our conclusion thus depended upon equating a
judicial acquittal with an order finding insufficient evi-
dence of culpability, not insufficient evidence of any par-
ticular element of the offense.6
——————
6 To account for Burks, the United States posits that, “[a]s used in
[its] brief, the ‘elements’ of an offense encompass legally recognized
defenses that would negate culpability.” U. S. Brief 11, n. 3. So too
would the dissent hold that, “as used in this opinion, the ‘elements’ of
an offense include legally recognized affirmative defenses that would
negate culpability.” Post, at 8, n. 2. Rather than adopt a novel defini-
tion of the word “element” to mean “elements and affirmative defenses,”
and then promptly limit that novel definition to these circumstances,
we prefer to read Burks for what it says, which is that the issue is
whether the bottom-line question of “criminal culpability” was resolved.
437 U. S., at 10.
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Opinion of the Court

In the end, this case follows those that have come before
it. The trial court’s judgment of acquittal resolved the
question of Evans’ guilt or innocence as a matter of
the sufficiency of the evidence, not on unrelated procedural
grounds. That judgment, “however erroneous” it was,
precludes reprosecution on this charge, and so should have
barred the State’s appeal as well. Sanabria, 437 U. S.,
at 69.
III

A

The State, supported by the United States, offers three
other reasons why the distinction drawn by the court be-
low should be maintained. None persuades us.
To start, the State argues that unless an actual element
of the offense is resolved by the trial court, the only way to
know whether the court’s ruling was an “acquittal” is to rely
upon the label used by the court, which would wrongly
allow the form of the trial court’s action to control. Brief
for Respondent 17–18, 21–22. We disagree. Our decision
turns not on the form of the trial court’s action, but rather
whether it “serve[s]” substantive “purposes” or procedural
ones. Scott, 437 U. S., at 98, n. 11. If a trial court were
to announce, midtrial, “The defendant shall be acquitted
because he was prejudiced by preindictment delay,” the
Double Jeopardy Clause would pose no barrier to reprose-
cution, notwithstanding the “acquittal” label. Cf. Scott,
437 U. S. 82. Here we know the trial court acquitted
Evans, not because it incanted the word “acquit” (which it
did not), but because it acted on its view that the prosecu-
tion had failed to prove its case.
Next, the State and the United States fear that if the
grounds for an acquittal are untethered from the actual
elements of the offense, a trial court could issue an unre-
viewable order finding insufficient evidence to convict for
any reason at all, such as that the prosecution failed to
12 EVANS v. MICHIGAN

Opinion of the Court

prove “that the structure burned [was] blue.” Brief for
Respondent 16–17; U. S. Brief 15. If the concern is that
there is no limit to the magnitude of the error that could
yield an acquittal, the response is that we have long held
as much. See supra, at 4. If the concern is instead that
our holding will make it easier for courts to insulate from
review acquittals that are granted as a form of nullifi-
cation, see Brief for Respondent 30, n. 58, we reject the
premise. We presume here, as in other contexts, that
courts exercise their duties in good faith. Cf. Harrington
v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13).
Finally, the State suggests that because Evans induced
the trial court’s error, he should not be heard to complain
when that error is corrected and the State wishes to retry
him. Brief for Respondent 32–33; cf. id., at 5–9. But we
have recognized that “most [judgments of acquittal] re-
sult from defense motions,” so “[t]o hold that a defendant
waives his double jeopardy protection whenever a trial
court error in his favor on a midtrial motion leads to an
acquittal would undercut the adversary assumption on
which our system of criminal justice rests, and would
vitiate one of the fundamental rights established by the
Fifth Amendment.” Sanabria, 437 U. S., at 78 (citation
omitted).7 It is true that when a defendant persuades the
court to declare a mistrial, jeopardy continues and retrial
is generally allowed. See United States v. Dinitz, 424 U. S.
600 (1976). But in such circumstances the defendant
consents to a disposition that contemplates reprosecution,
whereas when a defendant moves for acquittal he does
not. See Sanabria, 437 U. S., at 75.
——————
7 The dissent says that “defense counsel fooled the judge,” post, at 6,

but surely that charge is not fair. Nothing suggests counsel exceeded
the permissible bounds of zealous advocacy on behalf of his client.
Counsel presented a colorable legal argument, and marshaled persua-
sive authority: Michigan’s own criminal jury instructions, which, at the
time, supported his position. See supra, at 2, 3, n. 2.
 Cite as: 568 U. S. ____ (2013) 13

Opinion of the Court

The United States makes a related argument. It con-
tends that Evans could have asked the court to resolve
whether nondwelling status is an element of the offense
before jeopardy attached, so having elected to wait until
trial was underway to raise the point, he cannot now claim
a double jeopardy violation. U. S. Brief 22–25. The Gov-
ernment relies upon Lee v. United States, 432 U. S. 23
(1977), in which the District Court dismissed an indict-
ment midtrial because it had failed to allege the required
intent element of the offense. We held that retrial on a
corrected indictment was not barred, because the dismis-
sal was akin to a mistrial, not an acquittal. This was clear
because the District Court had separately denied the
defendant’s motion for judgment of acquittal, explaining
that the defendant “ ‘has been proven [guilty] beyond any
reasonable doubt in the world,’ ” while acknowledging that
the error in the indictment required dismissal. Id., at 26–
27. Because the defendant “invited the court to interrupt
the proceedings before formalizing a finding on the merits”
by raising the indictment issue so late, we held the princi-
ples governing a defendant’s consent to mistrial should
apply. Id., at 28 (citing Dinitz, 424 U. S. 600).
The Government suggests the situation here is “func-
tionally similar,” because “identifying the elements of an
offense is a necessary step in determining the sufficiency
of a charging document.” U. S. Brief 23. But we can-
not ignore the fact that what the trial court actually did
here was rule on the sufficiency of the State’s proof, not
the sufficiency of the information filed against him. Lee
demonstrates that the two need not rise or fall together.
And even if the Government is correct that Evans could
have challenged the charging document on the same legal
theory he used to challenge the sufficiency of the evidence,
it matters that he made only the latter motion, a motion
that necessarily may not be made until trial is underway.
Evans cannot be penalized for requesting from the court a
14 EVANS v. MICHIGAN

Opinion of the Court

ruling on the merits of the State’s case, as the Michigan
Rules entitled him to do; whether he could have also
brought a distinct procedural objection earlier on is beside
the point.
B
In the alternative, the State and the United States ask
us to reconsider our past decisions. Brief for Respondent
34–56 (suggesting overruling our cases since at least
Fong Foo); U. S. Brief 27–32 (suggesting overruling Smith,
Rumsey, and Smalis).8 We declined to revisit our cases
when the United States made a similar request in Smalis.
476 U. S., at 144; see Brief for United States as Amicus
Curiae in Smalis v. Pennsylvania, O. T. 1985, No. 85–227,
pp. 19–25. And we decline to do so here.
First, we have no reason to believe the existing rules
have become so “unworkable” as to justify overruling
precedent. Payne v. Tennessee, 501 U. S. 808, 827 (1991).
The distinction drawn in Scott has stood the test of time,
and we expect courts will continue to have little “difficulty
in distinguishing between those rulings which relate to
the ultimate question of guilt or innocence and those
which serve other purposes.” 437 U. S., at 98, n. 11 (in-
ternal quotation marks omitted). See, e.g., United States
v. Dionisio, 503 F. 3d 78, 83–88 (CA2 2007) (collecting
cases); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Crimi-
nal Procedure §25.3(a), p. 629 (3d ed. 2007) (same).
Second, the logic of these cases still holds. There is no

——————
8 The dissent’s true gripe may be with these cases as well, rather than
our result here, which, we have explained, follows inevitably from
them. See post, at 5 (noting “how far [our cases] have departed from
the common-law principles that applied at the time of the founding”);
compare post, at 12 (“Permitting retrial in these egregious cases is
especially appropriate”), with Fong Foo v. United States, 369 U. S. 141,
143 (1962) (per curiam) (according finality to even those acquittals
“based upon an egregiously erroneous foundation”).
 Cite as: 568 U. S. ____ (2013) 15

Opinion of the Court

question that a jury verdict of acquittal precludes retrial,
and thus bars appeal of any legal error that may have led
to that acquittal. See Ball, 163 U. S., at 671. So, had the
trial court here instructed the jury that it must find the
burned structure was not a dwelling in order to convict,
the jury would have acquitted Evans accordingly; “ ‘[a] jury
is presumed to follow its instructions.’ ” Blueford v. Ar-
kansas, 566 U. S. ___, ___ (2012) (slip op., at 6) (quoting
Weeks v. Angelone, 528 U. S. 225, 234 (2000)). And that
would have been the end of the matter. From that prem-
ise, Fong Foo’s holding follows: If a trial court instead
exercises its discretion to direct a jury to return a verdict
of acquittal, jeopardy also terminates notwithstanding any
legal error, because there too it is the jury that returns an
acquittal. And from there, Martin Linen’s conclusion is
unavoidable: It should make no difference whether the
court employs the formality of directing the jury to return
an acquittal or whether the court enters an acquittal
itself. Sanabria, Rumsey, Smalis, and Smith merely apply
Fong Foo and Martin Linen in tandem: If a trial court
makes an antecedent legal error (as in Fong Foo), and
then grants a judgment of acquittal rather than directing
the jury to acquit (as in Martin Linen), the result is an
acquittal all the same.
In other words, there is no way for antecedent legal
errors to be reviewable in the context of judicial acquittals
unless those errors are also reviewable when they give rise
to jury acquittals (contrary to the settled understanding
that a jury verdict of acquittal is unreviewable), or unless
we distinguish between juries that acquit pursuant to
their instructions and judicial acquittals (notwithstand-
ing that this is a purely formal distinction). Neither op-
tion has become more attractive with time. We therefore
reiterate: “any contention that the Double Jeopardy
Clause must itself . . . leave open a way of correcting legal
errors is at odds with the well-established rule that the
16 EVANS v. MICHIGAN

Opinion of the Court

bar will attach to a preverdict acquittal that is patently
wrong in law.” Smith, 543 U. S., at 473.
Finally, the State and the United States object that this
rule denies the prosecution a full and fair opportunity
to present its evidence to the jury, while the defendant
reaps a “windfall” from the trial court’s unreviewable error.
Brief for Respondent 6; U. S. Brief 31–32. But sovereigns
are hardly powerless to prevent this sort of situation, as
we observed in Smith, 543 U. S., at 474. Nothing obligates
a jurisdiction to afford its trial courts the power to grant a
midtrial acquittal, and at least two States disallow the
practice. See Nev. Rev. Stat. §175.381(1) (2011); State v.
Parfait, 96, 1814 (La. App. 1 Cir. 05/09/97), 693 So. 2d
1232, 1242. Many jurisdictions, including the federal
system, allow or encourage their courts to defer considera-
tion of a motion to acquit until after the jury returns a
verdict, which mitigates double jeopardy concerns.9 See
Fed. Rule Crim. Proc. 29(b). And for cases such as this, in
which a trial court’s interpretation of the relevant criminal
statute is likely to prove dispositive, we see no reason why
jurisdictions could not provide for mandatory continuances
or expedited interlocutory appeals if they wished to pre-
vent misguided acquittals from being entered.10 But
having chosen to vest its courts with the power to grant
midtrial acquittals, the State must bear the corresponding
risk that some acquittals will be granted in error.

——————
9 If a court grants a motion to acquit after the jury has convicted,

there is no double jeopardy barrier to an appeal by the government
from the court’s acquittal, because reversal would result in reinstate-
ment of the jury verdict of guilt, not a new trial. United States v.
Wilson, 420 U. S. 332 (1975).
10 Here, the prosecutor twice asked the court for a recess to review the

Michigan statutes and to discuss the question with her supervisor. 491
Mich., at 7, 810 N. W. 2d, at 538–539. If the trial court’s refusal was ill-
advised, that is a matter for state procedure to address, but it does not
bear on the double jeopardy consequences of the acquittal that followed.
 Cite as: 568 U. S. ____ (2013) 17

Opinion of the Court

* * *
We hold that Evans’ trial ended in an acquittal when
the trial court ruled the State had failed to produce suffi-
cient evidence of his guilt. The Double Jeopardy Clause
thus bars retrial for his offense and should have barred
the State’s appeal. The judgment of the Supreme Court of
Michigan is
Reversed.
 Cite as: 568 U. S. ____ (2013) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 11–1327
_________________

LAMAR EVANS, PETITIONER v. MICHIGAN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MICHIGAN

[February 20, 2013]

JUSTICE ALITO, dissenting.
The Court holds that the Double Jeopardy Clause bars
petitioner’s retrial for arson because his attorney managed
to convince a judge to terminate petitioner’s first trial
prior to verdict on the specious ground that the offense
with which he was charged contains an imaginary “ele-
ment” that the prosecution could not prove. The Court’s
decision makes no sense. It is not consistent with the
original meaning of the Double Jeopardy Clause; it does
not serve the purposes of the prohibition against double
jeopardy; and contrary to the Court’s reasoning, the trial
judge’s ruling was not an “acquittal,” which our cases have
“consistently” defined as a decision that “ ‘actually repre-
sents a resolution, correct or not, of some or all of the
factual elements of the offense charged.’ ” E.g., Smith v.
Massachusetts, 543 U. S. 462, 468 (2005) (quoting United
States v. Martin Linen Supply Co., 430 U. S. 564, 571
(1977); emphasis added). For no good reason, the Court
deprives the State of Michigan of its right to have one fair
opportunity to convict petitioner, and I therefore respect-
fully dissent.
I
After Detroit police officers heard an explosion at a
burning house, they observed petitioner running away
from the building with a gasoline can. The officers pur-
2 EVANS v. MICHIGAN

ALITO, J., dissenting

sued and ultimately apprehended petitioner, who admit-
ted that he had burned down the house. No one was living
in the house at the time of the fire.
If the house in question had been a “dwelling house,”
petitioner could have been charged under Mich. Comp.
Laws §750.72 (1981) for burning a dwelling, an offense
punishable by imprisonment for up to 20 years. But peti-
tioner was instead charged with “[b]urning other real
property” in violation of Mich. Comp. Laws §750.73. This
offense, which carries a maximum penalty of 10 years’
imprisonment, applies to “[a]ny person who wilfully or
maliciously burns any building or other real property . . .
other than those specified in [§750.72].” This crime is a
lesser included offense of the crime of burning a dwelling
house. The “necessary elements to prove either offense
are the same, except to prove the greater [offense] it must
be shown that the building is a dwelling.” 491 Mich. 1,
19–20, 810 N. W. 2d 535, 545–546 (2012) (internal quota-
tion marks omitted). To prove the lesser offense, however,
“ ‘it is not necessary to prove that the building is not a
dwelling.’ ” Id., at 20, 810 N. W. 2d, at 546 (emphasis
added).
At the close of the prosecution’s case, petitioner’s attor-
ney moved for a directed verdict on the ground that (1) the
prosecution was required to prove, as an “element” of
the charged offense, that “the building was not a dwelling”
and (2) “the prosecution had failed to prove that the
burned building was not a dwelling house.” Id., at 5, 810
N. W. 2d, at 537. The prosecutor responded by arguing
that nothing in the charged offense requires proof that the
building was not a dwelling, and the prosecutor requested
“a moment” to “pull the statute” and “consult with [her]
supervisors.” Id., at 5–7, 810 N. W. 2d, at 537–539. The
trial judge denied the prosecutor’s requests and errone-
ously concluded that the prosecution was required to prove
that the burned building was not a dwelling. After deter-
 Cite as: 568 U. S. ____ (2013) 3

ALITO, J., dissenting

mining that the State had not proved this nonexistent
“element,” the trial judge granted petitioner’s motion for
a directed verdict and entered an order that it labeled an
“[a]cquittal.” App. to Pet. for Cert. 72.
The trial judge’s ruling was plainly wrong, and on ap-
peal, defense counsel did not even attempt to defend its
correctness, conceding that the judge had “wrongly added
an extraneous element to the statute” under which his
client was charged. 491 Mich., at 3, 810 N. W. 2d, at 536;
see also 288 Mich. App. 410, 416, and n. 2, 794 N. W. 2d
848, 852, and n. 2 (2010). The Michigan Court of Appeals
agreed with this concession and went on to hold that
the trial judge’s ruling did not constitute an “acquittal” for
double jeopardy purposes because the ruling did not rep-
resent “a resolution in the defendant’s favor . . . of a fac-
tual element necessary for a criminal conviction.” Id., at
421–422, 794 N. W. 2d, at 856 (internal quotation marks
omitted). The Michigan Supreme Court affirmed, holding
that when, as here, a trial judge erroneously adds an ex-
tra “element” to a charged offense and subsequently de-
termines that the prosecution did not prove that extra
“element,” the trial judge’s decision is not based on the de-
fendant’s guilt or innocence of the elements of the charged
offense. 491 Mich., at 3–4, 19–21, 810 N. W. 2d, at 536–
537, 545–546. Accordingly, the Michigan Supreme Court
concluded that the judge’s ruling in this case “does not
constitute an acquittal for the purposes of double jeopardy
and retrial is . . . not barred.” Id., at 4, 810 N. W. 2d, at
537.
II
This Court now reverses the decision of the State Su-
preme Court, but the Court’s holding is supported by
neither the original understanding of the prohibition
against double jeopardy nor any of the reasons for that
prohibition.
4 EVANS v. MICHIGAN

ALITO, J., dissenting

A
The prohibition against double jeopardy “had its origin
in the three common-law pleas of autrefois acquit, autre-
fois convict, and pardon,” which “prevented the retrial of a
person who had previously been acquitted, convicted, or
pardoned for the same offense.” United States v. Scott,
437 U. S. 82, 87 (1978); see Crist v. Bretz, 437 U. S. 28,
33 (1978). As the Court has previously explained, “the
common-law protection against double jeopardy historically
applied only to charges on which a jury had rendered a
verdict.” Smith, 543 U. S., at 466 (emphasis added).1 As a
result, the original understanding of the Clause, which is
“hardly a matter of dispute,” Scott, supra, at 87, does not
compel the Court’s conclusion that a defendant is acquit-
ted for double jeopardy purposes whenever a judge issues
a preverdict ruling that the prosecution has failed to prove
a nonexistent “element” of the charged offense.
Although our decisions have expanded double jeopardy
protection beyond its common-law origins, see, e.g., Smith,
supra, at 466–467 (acknowledging the Court’s expansion
of “the common-law protection against double jeopardy”);

——————
1 See also Crist, 437 U. S., at 33 (“The Fifth Amendment guarantee

against double jeopardy derived from English common law, which
followed . . . the relatively simple rule that a defendant has been put in
jeopardy only when there has been a conviction or an acquittal—after a
complete trial. . . . And it is clear that in the early years of our national
history the constitutional guarantee against double jeopardy was
considered to be equally limited in scope”); 3 J. Story, Commentaries on
the Constitution of the United States §1781, p. 659 (1833) (“The mean-
ing of [the Double Jeopardy Clause] is, that a party shall not be tried a
second time for the same offence, after he has once been convicted, or
acquitted of the offence charged, by the verdict of a jury, and judgment
has passed thereon for or against him. But it does not mean, that he
shall not be tried for the offence a second time, if the jury have been
discharged without giving any verdict . . . .” (emphasis added)); 2
M. Hale, Pleas of the Crown 246 (1778) (“It must be an acquittal upon
trial either by verdict or battle”).
 Cite as: 568 U. S. ____ (2013) 5

ALITO, J., dissenting

Crist, supra, at 33–34, I nonetheless count it significant
that the result the Court reaches today finds no support in
the relevant common-law analogues that “lie at the core
of the area protected by the Double Jeopardy Clause,” see
Scott, 437 U. S., at 96. And given how far we have depart-
ed from the common-law principles that applied at the
time of the founding, we should at least ensure that our
decisions in this area serve the underlying purposes of the
constitutional prohibition against double jeopardy. See
id., at 95–96, 100–101. Yet today’s decision fails to ad-
vance the purposes of the Double Jeopardy Clause.
B
The Double Jeopardy Clause is largely based on “the
deeply ingrained principle that the State with all its re-
sources 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 or-
deal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibil-
ity that even though innocent he may be found guilty.”
Yeager v. United States, 557 U. S. 110, 117–118 (2009)
(internal quotation marks omitted); see also Blueford v.
Arkansas, 566 U. S. ___, ___ (2012) (slip op., at 5); Martin
Linen, 430 U. S., at 569. Allowing retrial in the circum-
stances of the present case would not result in any such
abuse. The prosecution would not be afforded a second
opportunity to persuade the factfinder that its evidence
satisfies the actual elements of the offense. Instead, be-
cause the trial judge’s ruling in the first trial was not
based on an actual element of the charged offense, retrial
would simply give the prosecution one fair opportunity to
prove its case.
Allowing retrial in this case would not permit prosecu-
tors “to make repeated attempts to convict an individual
for an alleged offense,” Yeager, supra, at 117. It was
6 EVANS v. MICHIGAN

ALITO, J., dissenting

petitioner, not the prosecutor, who sought to terminate the
trial prior to verdict. Thus, contrary to the Court’s unex-
plained suggestion, see ante, at 5–6, “[t]his case hardly
presents the specter of ‘an all-powerful state relentlessly
pursuing a defendant who had either been found not
guilty or who had at least insisted on having the issue of
guilt submitted to the first trier of fact.’ ” Sattazahn v.
Pennsylvania, 537 U. S. 101, 114–115 (2003) (quoting
Scott, supra, at 96). On the contrary, this is a case in
which defense counsel fooled the judge into committing an
error that provided his client with an undeserved benefit,
the termination of a trial that the defense obviously did
not want to run to completion. The Double Jeopardy
Clause does not require that the defense receive an even
greater benefit, the protection provided by an acquittal.
As this Court has repeatedly emphasized in double
jeopardy cases, a State has an interest in receiving “one
complete opportunity to convict those who have violated
its laws,” Sattazahn, supra, at 115 (internal quotation
marks omitted); Scott, supra, at 100, but today’s decision
deprives the State of Michigan of this valuable right.
C
The Court’s decision also flies in the face of our estab-
lished understanding of the meaning of an acquittal for
double jeopardy purposes. The Double Jeopardy Clause
provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U. S.
Const., Amdt. 5 (emphasis added). Thus, “[d]ouble-
jeopardy analysis focuses on the individual ‘offence’
charged.” Smith, 543 U. S., at 469, n. 3. And to determine
what constitutes “the individual ‘offence’ charged,” ibid.,
the Court homes in on the elements of the offense. See
United States v. Dixon, 509 U. S. 688, 696 (1993) (“In both
the multiple punishment and multiple prosecution con-
texts, this Court has concluded that where the two of-
 Cite as: 568 U. S. ____ (2013) 7

ALITO, J., dissenting

fenses for which the defendant is punished or tried cannot
survive the ‘same-elements’ test, the double jeopardy bar
applies”). Consistent with the constitutional text’s focus
on the “offence”—and thus the elements—with which a
defendant is charged, the Court’s “double-jeopardy cases
have consistently” defined an acquittal as a decision that
“ ‘actually represents a resolution, correct or not, of some
or all of the factual elements of the offense charged.’ ”
Smith, supra, at 468 (quoting Martin Linen, supra, at
571); see also Scott, supra, at 97 (“[A] defendant is acquit-
ted only when the ruling of the judge, whatever its label,
actually represents a resolution in the defendant’s favor,
correct or not, of some or all of the factual elements of the
offense charged” (internal quotation marks and brackets
omitted)).
Today, the Court effectively abandons the well-
established definition of an acquittal. Indeed, in the face
of our repeated holdings that an acquittal for double jeop-
ardy purposes requires a “resolution, correct or not, of
some or all of the factual elements of the offense charged,”
Smith, supra, at 468; Martin Linen, supra, at 571; see
also Scott, supra, at 97, the Court now declares that “the
touchstone [is] not whether any particular elements were
resolved,” ante, at 10 (emphasis added). Instead, the
Court proclaims that the dispositive question is whether a
midtrial termination represented a “procedural dismissa[l]”
or a “substantive rulin[g],” ante, at 5. This reformulation
of double jeopardy law is not faithful to our prece-
dents—or to the Double Jeopardy Clause itself. The key
question is not whether a ruling is “procedural” or “sub-
stantive” (whatever those terms mean in this context), but
whether a ruling relates to the defendant’s factual guilt or
innocence with respect to the “offence,” see U. S. Const.,
Amdt. 5—and thus the elements—with which he is
charged. See Scott, supra, at 87, 97–99, and n. 11.
When a judge evaluates the evidence and determines
8 EVANS v. MICHIGAN

ALITO, J., dissenting

that the prosecution has not proved facts that are legally
sufficient to satisfy the actual elements of the charged
offense, the ruling, however labeled, represents an acquit-
tal because it is founded on the defendant’s factual inno-
cence. See Martin Linen, 430 U. S., at 572. But when a
judge manufactures an additional “element” of an offense
and then holds that there is insufficient evidence to prove
that extra “element,” the judge has not resolved the de-
fendant’s “factual guilt or innocence” as to any of the
actual elements of the offense.2 Thus, the ruling, no mat-
ter what the judge calls it, does not acquit the defendant of
the offense with which he is charged. No acquittal occurs
when a criminal trial is terminated “on a basis unrelated
to factual guilt or innocence of the offense of which [a
defendant] is accused.” Scott, 437 U. S., at 87, 94–95, 98–
99. “[I]n a case such as this the defendant, by deliberately
choosing to seek termination of the proceedings against
him on a basis unrelated to factual guilt or innocence of
the offense of which he is accused, suffers no injury cog-
nizable under the Double Jeopardy Clause if the Govern-
ment is permitted to appeal from such a ruling of the trial
court in favor of the defendant.” Id., at 98–99 (reasoning
that, in such a case, the defendant was “neither acquitted
nor convicted, because he himself successfully undertook
to persuade the trial court not to submit the issue of guilt
or innocence to the jury which had been empaneled to try
him”).

——————
2 Because culpability for an offense can be negated by proof of an

affirmative defense, the Court has held that a ruling that the prosecu-
tion did not submit sufficient evidence to rebut an affirmative defense
constitutes an acquittal for double jeopardy purposes. See Burks v.
United States, 437 U. S. 1, 10–11 (1978); Scott, 437 U. S., at 97–98.
Thus, as used in this opinion, the “elements” of an offense include
legally recognized affirmative defenses that would negate culpability.
 Cite as: 568 U. S. ____ (2013) 9

ALITO, J., dissenting

III
Contrary to the Court’s opinion, its decision in this case
is not supported by prior precedent. In all three of the
principal cases on which the Court relies—Smalis v. Penn-
sylvania, 476 U. S. 140 (1986); Smith, 543 U. S. 462; and
Arizona v. Rumsey, 467 U. S. 203 (1984)—trial judges
ruled that the prosecution had failed to introduce suffi-
cient evidence to prove one or more of the actual elements
of the offenses in question. In none of these cases (and in
none of our other double jeopardy cases) did a trial judge
terminate a prosecution before verdict based on an ele-
ment of the judge’s own creation.
The first two cases, Smalis and Smith, involved gar-
den variety preverdict acquittals, i.e., rulings based on the
ground that the prosecution had failed to introduce suffi-
cient evidence to prove one or more of the actual elements
of an offense. (Using conventional modern terminology,
Rule 29(a) of the Federal Rules of Criminal Procedure
explicitly labels such rulings “acquittal[s].”)
In Smalis, the judge, at the close of the prosecution’s
case in chief, granted a demurrer with respect to certain
charges on the ground that the evidence regarding those
charges was “legally insufficient to support a conviction.”
476 U. S., at 141. The State Supreme Court held that this
ruling was not an acquittal for double jeopardy purposes
because it was based on a legal determination (i.e., that
the evidence was not sufficient) rather than a factual
finding, but we rejected that distinction. Id., at 143–144.
See also Sanabria v. United States, 437 U. S. 54, 71–72
(1978).
Smith involved a similar situation. There, one of the
elements of a firearms offense with which the defendant
was charged required proof that the gun “had a barrel ‘less
than 16 inches’ in length,” 543 U. S., at 464, and the trial
judge dismissed this charge before verdict on the ground
that the prosecution had not introduced sufficient evi-
10 EVANS v. MICHIGAN

ALITO, J., dissenting

dence to establish this undisputed element, id., at 464–
465. Before the remaining charges were submitted to the
jury, however, the judge reversed this ruling and allowed
the charge to go to the jury. Id., at 465. We held, how-
ever, that the judge’s prior ruling constituted an acquittal
and therefore barred the defendant’s conviction for this
offense. Id., at 467–469. Thus, both Smalis and Smith
involved rulings that were very different from the one at
issue here. In both of those earlier cases, the trial judges
held that the evidence was insufficient to prove undis-
puted elements of the offenses in question. In neither case
did the judge invent a new element.
The final case, Rumsey, differs from Smalis and Smith
in only one particular. Like Smalis and Smith, Rumsey
involved a ruling that the prosecution’s evidence was in-
sufficient to prove an element, but in Rumsey the ruling
was predicated on a misconstruction of an element. In
that case, after the defendant was found guilty of first-
degree murder, the “trial judge, with no jury, . . . con-
ducted a separate sentencing hearing” at which he deter-
mined that no aggravating circumstances were present. 467
U. S., at 205. In particular, the judge found that the
prosecution had not proved that the murder had been
committed “ ‘as consideration for the receipt, or in expecta-
tion of the receipt, of anything of pecuniary value.’ ” Id., at
205–206 (quoting Ariz. Rev. Stat. Ann. §13–703(F)(5)
(Supp. 1983–1984)). The judge reached this conclusion
because, in his (incorrect) view, that aggravating circum-
stance was limited to contract killings. 467 U. S., at 205–
206. Holding that the judge’s ruling constituted an acquit-
tal on the merits of the question whether a death sentence
was appropriate, we noted that the ruling rested on “a
misconstruction of the statute defining the pecuniary gain
aggravating circumstance.” Id., at 211. Accordingly, the
ruling was based on a determination that there was insuf-
ficient evidence to prove a real element; it was not based
 Cite as: 568 U. S. ____ (2013) 11

ALITO, J., dissenting

on the judicial invention of an extra “element.” And for
that reason, it does not support the nonsensical result that
the Court reaches today.
The Court may feel compelled to reach that result be-
cause it thinks that it would be unworkable to draw a
distinction between a preverdict termination based on the
trial judge’s misconstruction of an element of an offense
and a preverdict termination based on the judge’s percep-
tion that a statute contains an “element” that is actually
nonexistent. This practical concern is overblown. There
may be cases in which this determination presents prob-
lems, but surely there are many cases in which the de-
termination is quite easy. The present case is a perfect
example, for here there is no real dispute that the trial
judge’s ruling was based on a nonexistent statutory “ele-
ment.” As noted, defense counsel conceded on appeal that
the judge had “wrongly added an extraneous element to
the statute” under which his client was charged. 491
Mich., at 3, 810 N. W. 2d, at 536.
Another good example is provided by State v. Korsen,
138 Idaho 706, 69 P. 3d 126 (2003), where a Magistrate
erroneously concluded that the offense of criminal trespass
under Idaho law requires a showing that the defendant
did something to justify the property owner’s request for
the defendant to leave the premises. Id., at 710, 716–717,
69 P. 3d, at 130, 136–137. There is no question that the
Magistrate in Korsen “effectively created an additional
statutory element” before concluding that the prosecution
had presented insufficient evidence as to this purported
“element.” See ibid. (holding that double jeopardy did not
bar a retrial because the Magistrate’s “finding did not
actually determine in [defendant’s] favor any of the essen-
tial elements of the crime of trespass”).
Cases in which it can be said that a trial judge did not
simply misinterpret a real element of an offense but in-
stead invented an entirely new and nonexistent “element”
12 EVANS v. MICHIGAN

ALITO, J., dissenting

are cases in which the judge’s error is particularly egre-
gious. Permitting retrial in these egregious cases is espe-
cially appropriate.
* * *
I would hold that double jeopardy protection is not
triggered by a judge’s erroneous preverdict ruling that
creates an “element” out of thin air and then holds that
the element is not satisfied. I therefore respectfully
dissent.