(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 acquittal, 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 reversed 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 acquittal 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 decision 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 acquittal encompasses any ruling that the prosecution’s proof is insufficient 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 determination 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 error of law unrelated to [his] guilt or innocence,” but this Court perceives 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 element of the offense is resolved can there be an acquittal of the offense, but Evans’ verdict was based on something that was concededly 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 depend 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 allow the form of the trial court’s action to control. However, the instant 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 exercise their duties in good faith. The State also suggests that Evans

should not be heard to complain when a trial-court error that he induced is corrected and the State wishes to retry him, but most midtrial acquittals result from defense motions. The United States 

claims that, under Lee v. United States, 432 U. S. 23, Evans was required to ask the court to resolve whether nondwelling status was an 

element of the offense before jeopardy attached. However, Lee involved 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 “unworkable” 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 “windfall” from the trial court’s unreviewable error, sovereigns have power

to prevent such situations by disallowing the practice of midtrial acquittals, encouraging courts to defer consideration of a motion to acquit 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, Washington, 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 decide whether an erroneous acquittal such as this nevertheless 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 premised 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 “misconstruction” 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 property,” 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 verdict 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 criminalizes 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-

—————— 

1Mich. Comp. Laws §750.72 (1981), “Burning dwelling house,” provides: “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.” 
 

 

Cite as: 568 U. S. ____ (2013) 3 

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 rehearing)).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 defendant’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 retrial 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 because 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). 3Compare 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). 
 

4 EVANS v. MICHIGAN 

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 acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States, 369 U. S. 141, 143 (1962) 

(per curiam). A mistaken acquittal is an acquittal nonetheless, 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 violating 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 statute” 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 evidentiary 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 
 

 

Cite as: 568 U. S. ____ (2013) 5 

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 substantive 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 acquittal,” so a merits-related ruling concludes proceedings

absolutely. Id., at 91. This is because “[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high

risk that the Government, with its vastly superior resources, 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 expectation 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 acquittal 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 innocence,” 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 “erroneous 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 character.” 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 reasoned, the case terminates “based on an error of law 

unrelated to [the] defendant’s guilt or innocence on the elements 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, mistakenly held that Arizona’s statutory aggravating factor 

describing killings for pecuniary gain was limited to murders 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 successfully appealed and obtained a death sentence on remand,

we held that retrial on the penalty phase question was a

double jeopardy violation.4 

—————— 

4Under Bullington v. Missouri, 451 U. S. 430 (1981), a capital defendant is “acquitted” of the death penalty if, at the end of a separate

sentencing proceeding, the factfinder concludes that the prosecution 
 

 

8 EVANS v. MICHIGAN 

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 statute,” 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 substance 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 statute’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 
 

Cite as: 568 U. S. ____ (2013) 9 

Opinion of the Court 

ful, and we reject the notion that a defendant’s constitutional 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 protects 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 conviction. 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 conviction.” 430 U. S., at 572. That determination of nonculpability 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 determination 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 sufficient proof of [the defendant’s] capacity to be responsible 

for criminal acts,” the defendant has been acquitted because 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 evidence of culpability, not insufficient evidence of any particular element of the offense.6 

—————— 

6To 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 definition 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. 
 

Cite as: 568 U. S. ____ (2013) 11 

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 below 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 reprosecution, 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 prosecution 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 unreviewable 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 nullification, 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] result 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. 

—————— 

7The 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 persuasive 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 contends 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 Government relies upon Lee v. United States, 432 U. S. 23 

(1977), in which the District Court dismissed an indictment 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 dismissal 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 principles 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 “functionally 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 cannot 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 (internal 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, Criminal Procedure §25.3(a), p. 629 (3d ed. 2007) (same). 

Second, the logic of these cases still holds. There is no 

—————— 

8The 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. Arkansas, 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 premise, 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 (notwithstanding that this is a purely formal distinction). Neither option 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 consideration 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 prevent 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 reinstatement of the jury verdict of guilt, not a new trial. United States v. 

Wilson, 420 U. S. 332 (1975). 10Here, 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 illadvised, 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 sufficient 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 “element” 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 represents 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 respectfully 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 admitted 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 petitioner 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 quotation 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 attorney 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 erroneously 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 appeal, 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 represent “a resolution in the defendant’s favor . . . of a factual 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 extra “element” to a charged offense and subsequently determines that the prosecution did not prove that extra 

“element,” the trial judge’s decision is not based on the defendant’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 Supreme 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, autrefois 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 acquitted 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”); 

—————— 

1See 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 meaning 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 departed 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 advance 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 resources 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 ordeal and compelling him to live in a continuing state of 

anxiety and insecurity, as well as enhancing the possibility 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 circumstances 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, because 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 prosecutors “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 unexplained 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 established 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]oublejeopardy 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 contexts, 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 acquitted 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 wellestablished definition of an acquittal. Indeed, in the face 

of our repeated holdings that an acquittal for double jeopardy 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 precedents—or to the Double Jeopardy Clause itself. The key 

question is not whether a ruling is “procedural” or “substantive” (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 acquittal because it is founded on the defendant’s factual innocence. 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 defendant’s “factual guilt or innocence” as to any of the 

actual elements of the offense.2 Thus, the ruling, no matter 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 cognizable under the Double Jeopardy Clause if the Government 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”). 

—————— 

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

affirmative defense, the Court has held that a ruling that the prosecution 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. Pennsylvania, 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 sufficient 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 element of the judge’s own creation. 

The first two cases, Smalis and Smith, involved garden variety preverdict acquittals, i.e., rulings based on the

ground that the prosecution had failed to introduce sufficient 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, however, 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 undisputed 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 insufficient 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 firstdegree murder, the “trial judge, with no jury, . . . conducted a separate sentencing hearing” at which he determined 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 expectation 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 circumstance was limited to contract killings. 467 U. S., at 205– 

206. Holding that the judge’s ruling constituted an acquittal 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 insufficient 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 because 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 perception that a statute contains an “element” that is actually

nonexistent. This practical concern is overblown. There 

may be cases in which this determination presents problems, but surely there are many cases in which the determination 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 “element.” 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 essential 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 instead invented an entirely new and nonexistent “element” 
 

 

12 EVANS v. MICHIGAN 

ALITO, J., dissenting 

are cases in which the judge’s error is particularly egregious. Permitting retrial in these egregious cases is especially 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.