# United States v. Jorn

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## Concurring Opinion

    Burger

## Dissenting Opinion

    Stewart
United States Supreme Court
400 U.S. 470
United States v. Jorn
Appeal from the United States District Court for the District of Utah
No. 19. Argued: January 12, 1970 --- Decided: October 22, 1970
Appellee was tried in Federal District Court on an information charging him with willfully assisting in the preparation of fraudulent income tax returns. Following the impaneling of the jury, the prosecutor called to the stand a taxpayer whom appellee allegedly had aided in preparing his return. At defense counsel's suggestion, the judge warned the witness of his constitutional rights. The witness expressed his willingness to testify, stating that he had been warned of his rights when first contacted by the Internal Revenue Service (IRS). The judge refused to permit him to testify until he had consulted an attorney, indicating that he did not believe the witness had been warned by the IRS. Although the prosecutor advised the judge that the remaining witnesses had been warned of their rights by the IRS upon initial contact, the judge stated that the warnings were probably inadequate. Thereupon he discharged the jury and aborted the trial so that the witnesses could consult with attorneys. The case was set for retrial before another jury, but on appellee's pretrial motion the judge dismissed the information on the ground of former jeopardy. The Government filed a direct appeal to this Court.
Held: The judgment is affirmed. Pp. 473-488.
Affirmed.
MR. JUSTICE HARLAN, joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE MARSHALL, concluded that:
    1. The sustainment of a motion in bar based on a plea of former jeopardy is appealable by the Government, as long as the motion was sustained, as here, prior to the impaneling of the jury in the subsequent proceeding at which the motion was made. Cf. United States v. Sisson, 397 U.S. 267. Pp. 473-478.
    2. The Fifth Amendment's Double Jeopardy Clause represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. Pp. 479-486.
       (a) Although it is recognized that a defendant can be reprosecuted after a successful appeal, double jeopardy policies are not confined to the prevention of prosecutorial or judicial overreaching. Pp. 483-484.
       (b) The defendant has the option to have his case considered by the first jury, and where the judge, acting without defendant's consent, aborts the trial, the defendant has been deprived of his "valued right to have his trial completed by a particular tribunal." P. 484.
       (c) In the absence of defendant's motion for a mistrial, the doctrine of "manifest necessity," United States v. Perez, 9 Wheat. 579, 580, commands trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion warrants the conclusion that justice would not be served by a continuation of the trial. Pp. 485-486.
       (d) A judge must temper the decision whether or not to abort the trial by considering the importance to the defendant of being able finally to conclude his confrontation with society through the verdict of a tribunal that he might believe is favorable to him. P. 486.
    3. The trial judge here abused his discretion, and accordingly appellee's reprosecution would violate the Double Jeopardy Clause. Pp. 486-487.
MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concluded that the Court lacks jurisdiction of the appeal under 18 U.S.C. § 3731 because the trial judge's action amounted to an acquittal, but they join the Court's judgment in view of the decision of the majority of the Court to reach the merits. Pp. 487-488.
STEWART, J., joined by WHITE and BLACKMUN, JJ., agree only that the Court has jurisdiction of the appeal, as concluded by HARLAN, J. See point 1 of syllabus, supra.
HARLAN, J., announced the judgment of the Court in an opinion in which BURGER, C.J., and DOUGLAS and MARSHALL, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 487. BLACK and BRENNAN, JJ., filed a statement concurring in the judgment, post, p. 488. STEWART, J., filed a dissenting opinion in which WHITE and BLACKMUN, JJ., joined, post, p. 488.
Richard B. Stone argued the cause for the United States on the reargument. Louis F. Claiborne argued the cause for the United States on the original argument. With Mr. Stone on the brief on the reargument were Solicitor General Griswold and Assistant Attorney General Walters. On the brief on the original argument were Solicitor General Griswold, Assistant Attorney General Walters, Peter L. Strauss, and Joseph M. Howard.
Denis R. Morrill, by appointment of the Court, 396 U.S. 899, reargued the cause and filed briefs for appellee.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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