(Slip Opinion) OCTOBER TERM, 2011 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 

BLUEFORD v. ARKANSAS 

CERTIORARI TO THE SUPREME COURT OF ARKANSAS 

No. 10–1320. Argued February 22, 2012—Decided May 24, 2012 

The State of Arkansas charged petitioner Alex Blueford with capital

murder for the death of a one-year-old child. That charge included

the lesser offenses of first-degree murder, manslaughter, and negligent homicide. Before the start of deliberations, the trial court instructed the jury to consider the offenses as follows: “If you have a

reasonable doubt of the defendant’s guilt on the charge of capital

murder, you will consider the charge of murder in the first degree. . . . 

If you have a reasonable doubt of the defendant’s guilt on the charge

of murder in the first degree, you will then consider the charge of 

manslaughter. . . . If you have a reasonable doubt of the defendant’s 

guilt on the charge of manslaughter, you will then consider the 

charge of negligent homicide.” The court also presented the jury with 

a set of verdict forms, which allowed the jury either to convict 

Blueford of one of the charged offenses, or to acquit him of all of

them. Acquitting on some but not others was not an option. 

After deliberating for a few hours, the jury reported that it could 

not reach a verdict. The court inquired about the jury’s progress on 

each offense. The foreperson disclosed that the jury was unanimous 

against guilt on the charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The 

jury did so but still could not reach a verdict, and the court declared a 

mistrial. When the State subsequently sought to retry Blueford, he 

moved to dismiss the capital and first-degree murder charges on double jeopardy grounds. The trial court denied the motion, and the Supreme Court of Arkansas affirmed on interlocutory appeal. 

Held: The Double Jeopardy Clause does not bar retrying Blueford on

charges of capital murder and first-degree murder. Pp. 5−10. 

(a) The jury did not acquit Blueford of capital or first-degree mur-
 

 

 

2 BLUEFORD v. ARKANSAS 

Syllabus 

der. Blueford contends that the foreperson’s report that the jury was 

unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor. 

But the report was not a final resolution of anything. When the foreperson told the court how the jury had voted on each offense, the jury’s 

deliberations had not yet concluded. The jurors in fact went back to 

the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital

and first-degree murder as deliberations continued. The foreperson’s

report prior to the end of deliberations therefore lacked the finality

necessary to amount to an acquittal on those offenses. That same 

lack of finality undermines Blueford’s reliance on Green v. United 

States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323. In both of 

those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not. Pp. 5−8. 

(b) The trial court’s declaration of a mistrial was not improper. A 

trial can be discontinued without barring a subsequent one for the 

same offense when “particular circumstances manifest a necessity” to

declare a mistrial. Wade v. Hunter, 336 U. S. 684, 690. Blueford contends that there was no necessity for a mistrial on capital and firstdegree murder, given the foreperson’s report that the jury had voted

unanimously against guilt on those charges. According to Blueford, 

the court at that time should have taken some action, whether 

through new partial verdict forms or other means, to allow the jury to

give effect to those votes, and then considered a mistrial only as to

the remaining charges. Blueford acknowledges, however, that the 

trial court’s reason for declaring a mistrial here—that the jury was

unable to reach a verdict—has long been considered the “classic basis” establishing necessity for doing so. Arizona v. Washington, 434 

U. S. 497, 509. And this Court has never required a trial court, before declaring a mistrial because of a hung jury, to consider any particular means of breaking the impasse―let alone to consider giving

the jury new options for a verdict. See Renico v. Lett, 559 U. S. ___, 

___. As permitted under Arkansas law, the jury’s options in this case

were limited to two: either convict on one of the offenses, or acquit on 

all. The trial court did not abuse its discretion by refusing to add another option—that of acquitting on some offenses but not others. 

Pp. 9−10. 

2011 Ark. 8, ___ S. W. 3d ___, affirmed. 

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, 

KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. SOTOMAYOR, J., 

filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined. 
 

 

_________________ 

_________________ 

 

Cite as: 566 U. S. ____ (2012) 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. 10–1320 

ALEX BLUEFORD, PETITIONER v. ARKANSAS 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
 

ARKANSAS
 

[May 24, 2012] 

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court. 

The Double Jeopardy Clause protects against being 

tried twice for the same offense. The Clause does not, 

however, bar a second trial if the first ended in a mistrial. 

Before the jury concluded deliberations in this case, it reported that it was unanimous against guilt on charges of

capital murder and first-degree murder, was deadlocked

on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate.

The jury did so but still could not reach a verdict, and the

court declared a mistrial. All agree that the defendant 

may be retried on charges of manslaughter and negligent 

homicide. The question is whether he may also be retried 

on charges of capital and first-degree murder. 

I 

One-year-old Matthew McFadden, Jr., suffered a severe 

head injury on November 28, 2007, while home with his

mother’s boyfriend, Alex Blueford. Despite treatment at a

hospital, McFadden died a few days later. 

The State of Arkansas charged Blueford with capital

murder, but waived the death penalty. The State’s theory 
 

 

2 BLUEFORD v. ARKANSAS 

Opinion of the Court 

at trial was that Blueford had injured McFadden intentionally, causing the boy’s death “[u]nder circumstances 

manifesting extreme indifference to the value of human 

life.” Ark. Code Ann. §5–10–101(a)(9)(A) (Supp. 2011).

The defense, in contrast, portrayed the death as the result of Blueford accidentally knocking McFadden onto the 

ground.

The trial court instructed the jury that the charge of 

capital murder included three lesser offenses: first-degree

murder, manslaughter, and negligent homicide. In addition to describing these offenses, the court addressed the

order in which the jury was to consider them: “If you have 

a reasonable doubt of the defendant’s guilt on the charge 

of capital murder, you will consider the charge of murder 

in the first degree. . . . If you have a reasonable doubt of 

the defendant’s guilt on the charge of murder in the first

degree, you will then consider the charge of manslaughter. . . . If you have a reasonable doubt of the defendant’s

guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.” App. 51–52. 

The prosecution commented on these instructions in its 

closing argument. It told the jury, for example, that “before you can consider a lesser included of capital murder,

you must first, all 12, vote that this man is not guilty of 

capital murder.” Id., at 55. The prosecution explained 

that this was “not a situation where you just lay everything out here and say, well, we have four choices. Which 

one does it fit the most?” Id., at 59. Rather, the prosecution emphasized, “unless all 12 of you agree that this 

man’s actions were not consistent with capital murder,

then and only then would you go down to murder in the

first degree.” Ibid. 

After the parties concluded their arguments, the court

presented the jury with a set of five verdict forms, each 

representing a possible verdict. There were four separate

forms allowing the jury to convict on each of the charged 
Cite as: 566 U. S. ____ (2012) 3 

Opinion of the Court 

offenses: capital murder, first-degree murder, manslaughter, and negligent homicide. A fifth form allowed the jury

to return a verdict of acquittal, if the jury found Blueford

not guilty of any offense. There was no form allowing the 

jury to acquit on some offenses but not others. As stated 

in the court’s instructions, the jury could either “find the 

defendant guilty of one of these offenses” or “acquit him 

outright.” Id., at 51. Any verdict—whether to convict on

one or to acquit on all—had to be unanimous.

A few hours after beginning its deliberations, the jury 

sent the court a note asking “what happens if we cannot 

agree on a charge at all.” Id., at 62. The court called the 

jury back into the courtroom and issued a so-called “Allen 

instruction,” emphasizing the importance of reaching a verdict. See Allen v. United States, 164 U. S. 492, 501–502 

(1896). The jury then deliberated for a half hour more

before sending out a second note, stating that it “cannot 

agree on any one charge in this case.” App. 64. When the 

court summoned the jury again, the jury foreperson reported that the jury was “hopelessly” deadlocked. Ibid. 

The court asked the foreperson to disclose the jury’s votes 

on each offense: 

“THE COURT: All right. If you have your numbers

together, and I don’t want names, but if you have your 

numbers I would like to know what your count was on 

capital murder. 

“JUROR NUMBER ONE: That was unanimous 

against that. No. 

“THE COURT: Okay, on murder in the first degree?

“JUROR NUMBER ONE: That was unanimous 

against that. 

“THE COURT: Okay. Manslaughter?

“JUROR NUMBER ONE: Nine for, three against. 

“THE COURT: Okay. And negligent homicide?

“JUROR NUMBER ONE: We did not vote on that, 
 

 

 

4 BLUEFORD v. ARKANSAS 

Opinion of the Court 

sir. 

“THE COURT: Did not vote on that. 

“JUROR NUMBER ONE: No, sir. We couldn’t get 

past the manslaughter. Were we supposed to go past 

that? I thought we were supposed to go one at a 

time.” Id., at 64–65. 

Following this exchange, the court gave another Allen 

instruction and sent the jurors back to the jury room. 

After deliberations resumed, Blueford’s counsel asked the 

court to submit new verdict forms to the jurors, to be 

completed “for those counts that they have reached a

verdict on.” Id., at 67. The prosecution objected on the 

grounds that the jury was “still deliberating” and that a 

verdict of acquittal had to be “all or nothing.” Id., at 68. 

The court denied Blueford’s request. To allow for a partial 

verdict, the court explained, would be “like changing 

horses in the middle of the stream,” given that the jury

had already received instructions and verdict forms. Ibid. 

The court informed counsel that it would declare a mistrial “if the jury doesn’t make a decision.” Id., at 69. 

When the jury returned a half hour later, the foreperson 

stated that they had not reached a verdict. The court 

declared a mistrial and discharged the jury.

The State subsequently sought to retry Blueford. He 

moved to dismiss the capital and first-degree murder 

charges on double jeopardy grounds, citing the foreperson’s report that the jurors had voted unanimously against 

guilt on those offenses. The trial court denied the motion, 

and the Supreme Court of Arkansas affirmed on interlocutory appeal. According to the State Supreme Court, the 

foreperson’s report had no effect on the State’s ability to

retry Blueford, because the foreperson “was not making a

formal announcement of acquittal” when she disclosed the

jury’s votes. 2011 Ark. 8, p. 9, ___ S. W. 3d ___, ___. This 

was not a case, the court observed, “where a formal verdict 
Cite as: 566 U. S. ____ (2012) 5 

Opinion of the Court 

was announced or entered of record.” Ibid. The court 

added that the trial court did not err in denying Blueford’s

request for new verdict forms that would have allowed the 

jury to render a partial verdict on the charges of capital 

and first-degree murder.

Blueford sought review in this Court, and we granted

certiorari. 565 U. S. ___ (2011). 

II 

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. The 

Clause “guarantees that the State shall not be permitted 

to make repeated attempts to convict the accused, 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.” United States v. 

Martin Linen Supply Co., 430 U. S. 564, 569 (1977) (internal quotation marks omitted).

Blueford contends that the foreperson’s report means

that he cannot be tried again on charges of capital and 

first-degree murder. According to Blueford, the Double 

Jeopardy Clause prohibits a second trial on those charges,

for two reasons. 

A 

Blueford’s primary submission is that he cannot be

retried for capital and first-degree murder because the 

jury actually acquitted him of those offenses. See Green v. 

United States, 355 U. S. 184, 188 (1957). The Arkansas 

Supreme Court noted—and Blueford acknowledges—that 

no formal judgment of acquittal was entered in his case. 

But none was necessary, Blueford maintains, because an

acquittal is a matter of substance, not form. Quoting from 

our decision in Martin Linen, supra, at 571, Blueford 
 

6 BLUEFORD v. ARKANSAS 

Opinion of the Court 

contends that despite the absence of a formal verdict, a 

jury’s announcement constitutes an acquittal if it “ ‘actually represents a resolution . . . of some or all of the factual 

elements of the offense charged.’” Brief for Petitioner 21. 

Here, according to Blueford, the foreperson’s announcement of the jury’s unanimous votes on capital and firstdegree murder represented just that: a resolution of some

or all of the elements of those offenses in Blueford’s favor. 

We disagree. The foreperson’s report was not a final

resolution of anything. When the foreperson told the court

how the jury had voted on each offense, the jury’s deliberations had not yet concluded. The jurors in fact went back 

to the jury room to deliberate further, even after the foreperson had delivered her report. When they emerged a 

half hour later, the foreperson stated only that they were

unable to reach a verdict. She gave no indication whether 

it was still the case that all 12 jurors believed Blueford 

was not guilty of capital or first-degree murder, that 9 of

them believed he was guilty of manslaughter, or that a

vote had not been taken on negligent homicide. The fact 

that deliberations continued after the report deprives that

report of the finality necessary to constitute an acquittal

on the murder offenses. 

Blueford maintains, however, that any possibility that 

the jurors revisited the murder offenses was foreclosed by

the instructions given to the jury. Those instructions, he 

contends, not only required the jury to consider the offenses in order, from greater to lesser, but also prevented 

it from transitioning from one offense to the next without unanimously—and definitively—resolving the greater

offense in his favor. “A jury is presumed to follow its 

instructions.” Weeks v. Angelone, 528 U. S. 225, 234 

(2000). So, Blueford says, the foreperson’s report that the

jury was deadlocked on manslaughter necessarily establishes that the jury had acquitted Blueford of the greater 

offenses of capital and first-degree murder. 
 

 

 

Cite as: 566 U. S. ____ (2012) 7 

Opinion of the Court 

But even if we assume that the instructions required a

unanimous vote before the jury could consider a lesser 

offense—as the State assumes for purposes of this case, 

see Brief for Respondent 25, n. 3—nothing in the instructions prohibited the jury from reconsidering such a vote. 

The instructions said simply, “If you have a reasonable 

doubt of the defendant’s guilt on the charge of [the greater 

offense], you will [then] consider the charge of [the lesser 

offense].” App. 51–52. The jurors were never told that 

once they had a reasonable doubt, they could not rethink 

the issue. The jury was free to reconsider a greater offense, even after considering a lesser one.1 

A simple example illustrates the point. A jury enters

the jury room, having just been given these instructions.

The foreperson decides that it would make sense to determine the extent of the jurors’ agreement before discussions begin. Accordingly, she conducts a vote on capital

murder, and everyone votes against guilt. She does the 

same for first-degree murder, and again, everyone votes

against guilt. She then calls for a vote on manslaughter, 

and there is disagreement. Only then do the jurors engage in a discussion about the circumstances of the crime.

While considering the arguments of the other jurors on

how the death was caused, one of the jurors starts rethinking his own stance on a greater offense. After reflecting on 

the evidence, he comes to believe that the defendant did 

knowingly cause the death—satisfying the definition of 

—————— 

1 In reaching a contrary conclusion, post, at 6 (opinion of SOTOMAYOR, 

J.), the dissent construes the jury instructions to “require a jury to 

complete its deliberations on a greater offense before it may consider a 

lesser,” post, at 3 (emphasis added). But no such requirement can be

found in the text of the instructions themselves. And the dissent’s 

attempt to glean such a requirement from the Arkansas Supreme

Court’s decision in Hughes v. State, 347 Ark. 696, 66 S. W. 3d 645 

(2002), is unavailing, for that decision nowhere addresses the issue

here—whether a jury can reconsider a greater offense after considering 

a lesser one. 
 

 

 

 

8 BLUEFORD v. ARKANSAS 

Opinion of the Court 

first-degree murder. At that point, nothing in the instructions prohibits the jury from doing what juries often do: 

revisit a prior vote. “The very object of the jury system,”

after all, “is to secure unanimity by a comparison of views,

and by arguments among the jurors themselves.” Allen, 

164 U. S., at 501. A single juror’s change of mind is all it 

takes to require the jury to reconsider a greater offense. 

It was therefore possible for Blueford’s jury to revisit the

offenses of capital and first-degree murder, notwithstanding its earlier votes. And because of that possibility, the 

foreperson’s report prior to the end of deliberations lacked 

the finality necessary to amount to an acquittal on those

offenses, quite apart from any requirement that a formal

verdict be returned or judgment entered. 

That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184 (1957), and 

Price v. Georgia, 398 U. S. 323 (1970). In those cases, we 

held that the Double Jeopardy Clause is violated when 

a defendant, tried for a greater offense and convicted of

a lesser included offense, is later retried for the greater

offense. See Green, supra, at 190; Price, supra, at 329. 

Blueford argues that the only fact distinguishing his case

from Green and Price is that his case involves a deadlock 

on the lesser included offense, as opposed to a conviction. 

In his view, that distinction only favors him, because the 

Double Jeopardy Clause should, if anything, afford greater 

protection to a defendant who is not found guilty of the 

lesser included offense.

 Blueford’s argument assumes, however, that the votes

reported by the foreperson did not change, even though

the jury deliberated further after that report. That assumption is unjustified, because the reported votes were,

for the reasons noted, not final. Blueford thus overlooks 

the real distinction between the cases: In Green and Price, 

the verdict of the jury was a final decision; here, the report

of the foreperson was not. 
 

 

Cite as: 566 U. S. ____ (2012) 9 

Opinion of the Court 

B 

Blueford maintains that even if the jury did not acquit

him of capital and first-degree murder, a second trial on

those offenses would nonetheless violate the Double Jeopardy Clause, because the trial court’s declaration of a 

mistrial was improper. Blueford acknowledges that a trial

can be discontinued without barring a subsequent one for 

the same offense when “particular circumstances manifest

a necessity” to declare a mistrial. Wade v. Hunter, 336 

U. S. 684, 690 (1949); see also United States v. Perez, 9 

Wheat. 579, 580 (1824). He also acknowledges that the 

trial court’s reason for declaring a mistrial here—that 

the jury was unable to reach a verdict—has long been considered the “classic basis” establishing such a necessity. 

Arizona v. Washington, 434 U. S. 497, 509 (1978). 

Blueford therefore accepts that a second trial on manslaughter and negligent homicide would pose no double 

jeopardy problem. He contends, however, that there was 

no necessity for a mistrial on capital and first-degree 

murder, given the foreperson’s report that the jury had

voted unanimously against guilt on those charges. According to Blueford, the court at that time should have taken 

“some action,” whether through partial verdict forms or

other means, to allow the jury to give effect to those votes,

and then considered a mistrial only as to the remaining

charges. Reply Brief for Petitioner 11, n. 8.

We reject that suggestion. We have never required a 

trial court, before declaring a mistrial because of a hung 

jury, to consider any particular means of breaking the 

impasse—let alone to consider giving the jury new options

for a verdict. See Renico v. Lett, 559 U. S. ___, ___ (2010) 

(slip op., at 8).2 As permitted under Arkansas law, the 

—————— 

2Finding our reliance on Renico “perplexing,” the dissent reads that

decision to have “little to say about a trial judge’s responsibilities, or

this Court’s, on direct review.” Post, at 10–11, n. 4. But Renico’s 
 

 

10 BLUEFORD v. ARKANSAS 

Opinion of the Court 

jury’s options in this case were limited to two: either convict on one of the offenses, or acquit on all. The instructions explained those options in plain terms, and the

verdict forms likewise contemplated no other outcome. 

There were separate forms to convict on each of the possible offenses, but there was only one form to acquit, and it

was to acquit on all of them. When the foreperson disclosed the jury’s votes on capital and first-degree murder, 

the trial court did not abuse its discretion by refusing to

add another option—that of acquitting on some offenses 

but not others. That, however, is precisely the relief 

Blueford seeks—relief the Double Jeopardy Clause does

not afford him. 

* * * 

The jury in this case did not convict Blueford of any

offense, but it did not acquit him of any either. When the 

jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a 

consequence, the Double Jeopardy Clause does not stand

in the way of a second trial on the same offenses.

The judgment of the Supreme Court of Arkansas is 

Affirmed. 

—————— 

discussion of the applicable legal principles concerns just that, and the 

dissent in any event does not dispute that we have never required a 

trial court to consider any particular means of breaking a jury impasse.
 
_________________ 

_________________ 

Cite as: 566 U. S. ____ (2012) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 10–1320 

ALEX BLUEFORD, PETITIONER v. ARKANSAS 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
 

ARKANSAS
 

[May 24, 2012] 

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG 

and JUSTICE KAGAN join, dissenting. 

The Double Jeopardy Clause “unequivocally prohibits a 

second trial following an acquittal.” Arizona v. Washington, 434 U. S. 497, 503 (1978). To implement this rule, our

cases have articulated two principles. First, an acquittal 

occurs if a jury’s decision, “whatever its label, actually represents a resolution, correct or not, of some or all of the 

factual elements of the offense charged.” United States v. 

Martin Linen Supply Co., 430 U. S. 564, 571 (1977). Second, a trial judge may not defeat a defendant’s entitlement 

to “the verdict of a tribunal he might believe to be favorably disposed to his fate” by declaring a mistrial before

deliberations end, absent a defendant’s consent or a 

“‘manifest necessity’” to do so. United States v. Jorn, 400 

U. S. 470, 486, 481 (1971) (plurality opinion) (quoting 

United States v. Perez, 9 Wheat. 579, 580 (1824)). 

Today’s decision misapplies these longstanding principles. The Court holds that petitioner Alex Blueford

was not acquitted of capital or first-degree murder, even 

though the forewoman of the Arkansas jury empaneled to

try him announced in open court that the jury was “unanimous against” convicting Blueford of those crimes. Nor, 

the Court concludes, did the Double Jeopardy Clause

oblige the trial judge to take any action to give effect to the

jury’s unambiguous decision before declaring a mistrial as 
 

2 BLUEFORD v. ARKANSAS 

SOTOMAYOR, J., dissenting 

to those offenses. The Court thus grants the State what

the Constitution withholds: “the proverbial ‘second bite at

the apple.’” Burks v. United States, 437 U. S. 1, 17 (1978).

I respectfully dissent. 

I 

A 

The bar on retrials following acquittals is “the most 

fundamental rule in the history of double jeopardy jurisprudence.” Martin Linen, 430 U. S., at 571; see, e.g., 

United States v. Ball, 163 U. S. 662, 671 (1896); 4 W. 

Blackstone, Commentaries on the Laws of England 329

(1769). This prohibition stops the State, “with all its

resources and power,” from mounting abusive, harassing

reprosecutions, Green v. United States, 355 U. S. 184, 187 

(1957), which subject a defendant to “embarrassment,

expense, anxiety, and insecurity, and the possibility that 

he may be found guilty even though innocent,” United 

States v. DiFrancesco, 449 U. S. 117, 136 (1980). 

In ascertaining whether an acquittal has occurred,

“form is not to be exalted over substance.” Sanabria v. 

United States, 437 U. S. 54, 66 (1978). Rather, we ask 

whether the factfinder has made “a substantive determination that the prosecution has failed to carry its burden.” 

Smith v. Massachusetts, 543 U. S. 462, 468 (2005). Jurisdictions have different procedures respecting the announcement of verdicts and the entry of judgments, but 

that diversity has no constitutional significance. Jeopardy

terminates upon a determination, however characterized, 

that the “evidence is insufficient” to prove a defendant’s 

“factual guilt.” Smalis v. Pennsylvania, 476 U. S. 140, 144 

(1986). Thus, we have treated as acquittals a trial judge’s

directed verdict of not guilty, Smith, 543 U. S., at 468; an 

appellate reversal of a conviction for insufficiency of the 

evidence, Burks, 437 U. S., at 10; and, most pertinent 

here, a jury’s announcement of a not guilty verdict that 
 

Cite as: 566 U. S. ____ (2012) 3 

SOTOMAYOR, J., dissenting 

was “not followed by any judgment,” Ball, 163 U. S., at 

671. 

A straightforward application of that principle suffices 

to decide this case. Arkansas is a classic “acquittal-first”

or “hard-transition” jurisdiction. See generally People v. 

Richardson, 184 P. 3d 755, 764, n. 7 (Colo. 2008). Arkansas’ model jury instructions require a jury to complete its 

deliberations on a greater offense before it may consider 

a lesser. 1 Ark. Model Jury Instr., Crim., No. 302 (2d 

ed. 1994). As a matter of Arkansas law, “[b]efore it may 

consider any lesser-included offense, the jury must first 

determine that the proof is insufficient to convict on the 

greater offense. Thus, the jury must, in essence, acquit 

the defendant of the greater offense before considering his 

or her guilt on the lesser-included offense.” Hughes v. 

State, 347 Ark. 696, 706–707, 66 S. W. 3d 645, 651 (2002).1 

Here, the trial judge instructed Blueford’s jury to consider the offenses in order, from the charged offense of 

capital murder to the lesser included offenses of firstdegree murder, manslaughter, and negligent homicide.

The judge told the jury to proceed past capital murder only

upon a unanimous finding of a “reasonable doubt” as to

that offense—that is, upon an acquittal. See In re Winship, 397 U. S. 358, 363 (1970). The State’s closing arguments repeated this directive: “[B]efore you can consider a

lesser included of capital murder, you must first, all 12, 

vote that this man is not guilty of capital murder.” App. 

55. And the forewoman’s colloquy with the judge leaves no 

doubt that the jury understood the instructions to mandate unanimous acquittal on a greater offense as a prerequisite to consideration of a lesser: The forewoman 

—————— 

1The State has taken the same position. See Brief for Appellee in 

Boyd v. State, No. CR 06–973 (Ark.), p. 13 (“[U]nanimity is the essence

of a jury verdict as it pertains to acquitting a defendant of the charged 

offense and the subsequent consideration of lesser-included offenses”). 
 

 

4 BLUEFORD v. ARKANSAS 

SOTOMAYOR, J., dissenting 

reported that the jury had not voted on negligent homicide 

because the jurors “couldn’t get past the manslaughter” 

count on which they were deadlocked. Id., at 65. 

In this context, the forewoman’s announcement in open

court that the jury was “unanimous against” conviction on

capital and first-degree murder, id., at 64–65, was an 

acquittal for double jeopardy purposes.2 Per Arkansas 

law, the jury’s determination of reasonable doubt as to 

those offenses was an acquittal “in essence.” Hughes, 347 

Ark., at 707, 66 S. W. 3d, at 651. By deciding that the 

State “had failed to come forward with sufficient proof,”

the jury resolved the charges of capital and first-degree

murder adversely to the State. Burks, 437 U. S., at 10. 

That acquittal cannot be reconsidered without putting

Blueford twice in jeopardy. 

Green and Price v. Georgia, 398 U. S. 323 (1970), bolster 

—————— 

2The jury’s acquittals on the murder counts were unsurprising in 

light of the deficiencies in the State’s case. For example, Dr. Adam 

Craig—the medical examiner who autopsied the victim, Matthew

McFadden, Jr., and whose testimony was essential to the State’s theory

of the crime—was not board certified in anatomical pathology, having failed the certification examination five times. Dr. Craig took only

2 slides of Matthew’s brain, not the 10 to 20 called for by prevailing professional standards. He dismissed Blueford’s explanation for

Matthew’s death—that Blueford accidentally knocked Matthew to the 

floor—on the basis of an outdated paper on child head injuries, acknowledging that he was only “vaguely aware” of a more recent, seminal paper that supported Blueford’s account. Record 390; see Goldsmith & Plunkett, A Biomechanical Analysis of the Causes of

Traumatic Brain Injury in Infants and Children, 25 Am. J. Forensic

Med. & Pathology 89 (2004). Blueford’s expert pathologist, Dr. Robert 

Bux, testified that Dr. Craig’s autopsy was inadequate to establish

whether Matthew’s death was accidental or intentional. And Blueford’s expert pediatrician, Dr. John Galaznik, testified that the State’s 

theory—that Blueford slammed Matthew into a mattress on the floor—

was “not a likely cause” of the boy’s injuries when assessed in view of

current medical literature. Record 766. Even the trial judge observed 

that the State’s proof was “circumstantial at best,” and that this was

“probably . . . a lesser included offense case.” Id., at 610. 
Cite as: 566 U. S. ____ (2012) 5 

SOTOMAYOR, J., dissenting 

that conclusion. In Green, the jury convicted the defendant on the lesser included offense of second-degree murder

without returning a verdict on the charged offense of firstdegree murder. This Court concluded that this result was 

an “implicit acquittal” on the greater offense of firstdegree murder, barring retrial. 355 U. S., at 190. The 

defendant “was forced to run the gantlet once on that

charge and the jury refused to convict him. When given

the choice between finding him guilty of either first or 

second degree murder it chose the latter.” Ibid.; see also 

Price, 398 U. S., at 329 (“[T]his Court has consistently 

refused to rule that jeopardy for an offense continues after 

an acquittal, whether that acquittal is express or implied 

by a conviction on a lesser included offense when the 

jury was given a full opportunity to return a verdict on

the greater charge” (footnote omitted)). Notably, Green 

acknowledged that its finding of an “implicit acquittal”

was an “assumption,” because the jury had made no express statement with respect to the greater offense. 355 

U. S., at 190–191. 

Blueford’s position is even stronger because his jury was

not silent on the murder counts, but announced that it 

was “unanimous against” conviction. And the trial judge

specifically instructed the jury to consider manslaughter

only after acquitting Blueford of the murder counts. 

Courts in several acquittal-first jurisdictions have held 

that a jury’s deadlock on a lesser included offense justifies 

the assumption that the jury acquitted on any greater

offenses. See State v. Tate, 256 Conn. 262, 283–285, 773 

A. 2d. 308, 323–324 (2001); Stone v. Superior Ct. of San 

Diego Cty., 31 Cal. 3d 503, 511–512, n. 5, 646 P. 2d 809, 

815, n. 5 (1982). That assumption is not even necessary

here because the jury unmistakably announced acquittal. 

B 

The majority holds that the forewoman’s announcement 
 

 

6 BLUEFORD v. ARKANSAS 

SOTOMAYOR, J., dissenting 

was not an acquittal because it “was not a final resolution 

of anything.” Ante, at 6. In the majority’s view, the jury 

might have revisited its decisions on the murder counts

during the 31 minutes of deliberations that followed the 

forewoman’s announcement. We cannot know whether 

the jury did so, the majority reasons, because the jury was

discharged without confirming that it remained “unanimous against” convicting Blueford of capital and firstdegree murder. Ante, at 6–8.3 

Putting to one side the lack of record evidence to support

this speculation—by far the more plausible inference is

that the jurors spent those 31 minutes attempting to

resolve their deadlock on manslaughter—I do not agree 

that the jury was free to reconsider its decisions when 

its deliberations resumed. “A verdict of acquittal on the 

issue of guilt or innocence is, of course, absolutely final.” 

Bullington v. Missouri, 451 U. S. 430, 445 (1981). The 

jury heard instructions and argument that it was required 

unanimously to acquit on capital and first-degree murder 

before it could reach manslaughter. And as the forewoman’s colloquy makes plain, the jury followed those instructions scrupulously. There is no reason to believe that the 

jury’s vote was anything other than a verdict in substance—that is, a “final collective decision . . . reached 

—————— 

3This Court granted certiorari to decide “[w]hether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars 

reprosecution of a greater offense after a jury announces that it has 

voted against guilt on the greater offense.” Pet. for Cert. i. The majority resolves the question presented by determining that the forewoman’s

announcements were not final, such that Blueford’s jury did not necessarily deadlock on the lesser included offense of manslaughter. See 

ante, at 8–9, n. 2. In light of that determination, I do not read today’s 

opinion to express any view with respect to the requirements of the

Double Jeopardy Clause where a jury does deadlock on a lesser included offense. Cf., e.g., State v. Tate, 256 Conn. 262, 284–285, 773 

A. 2d 308, 324–325 (2001); Whiteaker v. State, 808 P. 2d 270, 274 

(Alaska App. 1991). 
 

 

 

Cite as: 566 U. S. ____ (2012) 7 

SOTOMAYOR, J., dissenting 

after full deliberation, consideration, and compromise

among the individual jurors.” Harrison v. Gillespie, 640 

F. 3d 888, 906 (CA9 2011) (en banc). And when that decision was announced in open court, it became entitled to

full double jeopardy protection. See, e.g., Commonwealth 

v. Roth, 437 Mass. 777, 796, 776 N. E. 2d 437, 450–451 

(2002) (declining to give effect to “‘“the verdict received 

from the lips of the foreman in open court”’” would “elevate form over substance”); Stone, 31 Cal. 3d, at 511, 646 

P. 2d, at 814–815 (“[I]n determining what verdict, if any, a

jury intended to return, the oral declaration of the jurors

endorsing the result is the true return of the verdict”

(internal quotation marks omitted)); see also, e.g., Dixon v. 

State, 29 Ark. 165, 171 (1874) (technical defect in verdict

“is of no consequence whatever, for the verdict need not be 

in writing, but may be announced by the foreman of the 

jury orally”); State v. Mills, 19 Ark. 476 (1858) (“The verdict was of no validity until delivered, by the jury, in 

Court”).

The majority’s example of a jury that takes a preliminary vote on greater offenses, advances to the consideration of a lesser, and then returns to a greater, is inapposite.

See ante, at 7. In the majority’s example, the jury has 

not announced its vote in open court. Moreover, the 

instructions in this case did not contemplate that the

jury’s deliberations could take the course that the majority

imagines. Arkansas’ model instruction requires acquittal

as a prerequisite to consideration of a lesser offense, and 

the Double Jeopardy Clause entitles an acquittal to finality. Indeed, the purpose of an acquittal-first instruction is

to ensure careful and conclusive deliberation on a greater 

offense. See United States v. Tsanas, 572 F. 2d 340, 346 

(CA2 1978) (Friendly, J.) (acquittal-first instruction avoids

“the danger that the jury will not adequately discharge its

duties with respect to the greater offense, and instead will

move too quickly to the lesser”). True, Arkansas’ instruc-
 

8 BLUEFORD v. ARKANSAS 

SOTOMAYOR, J., dissenting 

tion does not expressly forbid reconsideration, but it does 

not expressly permit reconsideration either. In any event,

nothing indicates that the jury’s announced decisions were

tentative, compromises, or mere steps en route to a final 

verdict, and the Double Jeopardy Clause demands that 

ambiguity be resolved in favor of the defendant. See 

Downum v. United States, 372 U. S. 734, 738 (1963). 

The fact that the jury was not given the express option 

of acquitting on individual offenses is irrelevant. See ante, 

at 3, 9. Arkansas law ascribes no significance to the presence of such options on a verdict form. See Rowland v. 

State, 263 Ark. 77, 85, 562 S. W. 2d 590, 594 (1978) (“The

jury may prepare and present its own form of verdict”). 

The lack of a state procedural vehicle for the entry of a 

judgment of acquittal does not prevent the recognition of

an acquittal for constitutional purposes. See Hudson v. 

Louisiana, 450 U. S. 40, 41, n. 1 (1981). 

Finally, the majority’s distinction of Green and Price is 

unavailing. The majority observes that Green and Price, 

unlike this case, involved final decisions. Ante, at 8. As I 

have explained, I view the forewoman’s announcements of

acquittal in this case as similarly final. In any event, 

Green clarified that the defendant’s “claim of former jeopardy” was “not based on his previous conviction for second 

degree murder but instead on the original jury’s refusal to 

convict him of first degree murder.” 355 U. S., at 190, 

n. 11; accord, id., at 194, n. 14. That is, the jury’s silence

on the greater offense spoke with sufficient clarity to

justify the assumption of acquittal and to invoke the Double Jeopardy Clause. Id., at 191; see also Price, 398 U. S., 

at 329. In light of the forewoman’s announcement, this is 

an a fortiori case. 

In short, the Double Jeopardy Clause demands an inquiry into the substance of the jury’s actions. Blueford’s 

jury had the option to convict him of capital and firstdegree murder, but expressly declined to do so. That 
Cite as: 566 U. S. ____ (2012) 9 

SOTOMAYOR, J., dissenting 

ought to be the end of the matter. 

II
 

A 

Even if the majority were correct that the jury might

have reconsidered an acquitted count—a doubtful assumption for the reasons just explained—that would not defeat

Blueford’s double jeopardy claim. It “has been long established as an integral part of double jeopardy jurisprudence” that “a defendant could be put in jeopardy even in

a prosecution that did not culminate in a conviction or an

acquittal.” Crist v. Bretz, 437 U. S. 28, 34 (1978). This 

rule evolved in response to the “abhorrent” practice under

the Stuart monarchs of terminating prosecutions, and 

thereby evading the bar on retrials, when it appeared that 

the Crown’s proof might be insufficient. Washington, 434 

U. S., at 507; see, e.g., Ireland’s Case, 7 How. St. Tr. 79, 

120 (1678). Accordingly, retrial is barred if a jury is discharged before returning a verdict unless the defendant 

consents or there is a “manifest necessity” for the discharge. Perez, 9 Wheat., at 580; see also King v. Perkins, 

90 Eng. Rep. 1122 (K. B. 1698). 

In Perez, this Court explained that “manifest necessity”

is a high bar: “[T]he power ought to be used with the 

greatest caution, under urgent circumstances, and for very 

plain and obvious causes.” 9 Wheat., at 580. Since Perez, 

this Court has not relaxed the showing required. See, e.g., 

Washington, 434 U. S., at 506 (requiring a “‘high degree’” 

of necessity); Downum, 372 U. S., at 736 (“imperious 

necessity”); see also, e.g., United States v. Coolidge, 25 

F. Cas. 622, 623 (No. 14,858) (CC Mass. 1815) (Story, J.) 

(“extraordinary and striking circumstances”). Before declaring a mistrial, therefore, a trial judge must weigh

heavily a “defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 

U. S. 684, 689 (1949). And in light of the historical abuses 
 

10 BLUEFORD v. ARKANSAS 

SOTOMAYOR, J., dissenting 

against which the Double Jeopardy Clause guards, a trial

judge must tread with special care where a mistrial would

“help the prosecution, at a trial in which its case is going 

badly, by affording it another, more favorable opportunity

to convict the accused.” Gori v. United States, 367 U. S. 

364, 369 (1961); see Green, 355 U. S., at 188. 

A jury’s genuine inability to reach a verdict constitutes

manifest necessity. But in an acquittal-first jurisdiction, a 

jury that advances to the consideration of a lesser included

offense has not demonstrated an inability to decide a defendant’s guilt or innocence on a greater—it has acquitted on the greater. Under Green, that is unquestionably 

true if the jury convicts on the lesser. See id., at 189. It 

would be anomalous if the Double Jeopardy Clause offered 

less protection to a defendant whose jury has deadlocked

on the lesser and thus convicted of nothing at all. See 

Stone, 31 Cal. 3d, at 511–512, n. 5, 646 P. 2d, at 815, n. 5. 

I would therefore hold that the Double Jeopardy Clause

requires a trial judge, in an acquittal-first jurisdiction, to 

honor a defendant’s request for a partial verdict before

declaring a mistrial on the ground of jury deadlock. 

Courts in acquittal-first jurisdictions have so held. See, 

e.g., Tate, 256 Conn., at 285–287, 773 A. 2d, at 324–325; 

Whiteaker v. State, 808 P. 2d 270, 274 (Alaska App. 1991); 

Stone, 31 Cal. 3d, at 519, 646 P. 2d, at 820; State v. 

Pugliese, 120 N. H. 728, 730, 422 A. 2d 1319, 1321 (1980) 

(per curiam); State v. Castrillo, 90 N. M. 608, 611, 566 

P. 2d 1146, 1149 (1977); see also N. Y. Crim. Proc. Law 

Ann. §310.70 (West 2002). Requiring a partial verdict in

an acquittal-first jurisdiction ensures that the jurisdiction 

takes the bitter with the sweet. In general, an acquittalfirst instruction increases the likelihood of conviction on a 

greater offense. See People v. Boettcher, 69 N. Y. 2d 174, 

182, 505 N. E. 2d 594, 597 (1987). True, such an instruction may also result in deadlock on a greater, preventing a

State “from obtaining a conviction on the lesser charge 
Cite as: 566 U. S. ____ (2012) 11 

SOTOMAYOR, J., dissenting 

that would otherwise have been forthcoming and thus 

require the expense of a retrial.” Tsanas, 572 F. 2d, at 

346. But a State willing to incur that expense loses nothing by overcharging in an acquittal-first regime. At worst, 

the State enjoys a second opportunity to convict, “with the 

possibility that the earlier ‘trial run’ will strengthen the 

prosecution’s case.” Crist, 437 U. S., at 52 (Powell, J., 

dissenting). If a State wants the benefits of requiring a 

jury to acquit before compromising, it should not be permitted to deprive a defendant of the corresponding benefits of having been acquitted. The Double Jeopardy Clause 

expressly prohibits that outcome.

The majority observes that we “have never required a

trial court, before declaring a mistrial because of a hung 

jury, to consider any particular means of breaking the 

impasse—let alone to consider giving the jury new options

for a verdict.” Ante, at 10 (citing Renico v. Lett, 559 U. S. 

___, ___ (2010) (slip op., at 8)). That hands-off approach 

dilutes Perez beyond recognition. This Court has never 

excused a trial judge from exercising “scrupulous” care

before discharging a jury. Jorn, 400 U. S., at 485 (plurality opinion). Rather, we have insisted that a trial judge

may not act “irrationally,” “irresponsibly,” or “precipitately.” Washington, 434 U. S., at 514–515. Nor have we 

retreated from the rule that “reviewing courts have an

obligation to ensure themselves that . . . the trial judge

exercised ‘sound discretion’ in declaring a mistrial.” Id., at 

514 (quoting Perez, 9 Wheat., at 580).4 

—————— 

4The majority’s reliance on Renico, a habeas corpus case decided 

under the deferential standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), is perplexing. 

As Renico made clear, the question there was “not whether the trial 

judge should have declared a mistrial. It is not even whether it was an 

abuse of discretion for her to have done so—the applicable standard on 

direct review. The question under AEDPA is instead whether the

determination of the Michigan Supreme Court that there was no abuse 
 

 

12 BLUEFORD v. ARKANSAS 

SOTOMAYOR, J., dissenting 

B 

Even if the Double Jeopardy Clause did not compel that 

broader rule, the facts of this case confirm that there was 

no necessity, let alone manifest necessity, for a mistrial. 

There was no reason for the judge not to have asked the 

jury, prior to discharge, whether it remained “unanimous

against” conviction on capital and first-degree murder. 

There would have been no intrusion on the jury’s deliberative process. The judge was not required to issue new 

instructions or verdict forms, allow new arguments, direct 

further deliberations, or take any other action that might

have threatened to coerce the jury. Merely repeating his

earlier question would have sufficed. Because the judge

failed to take even this modest step—or indeed, to explore

any alternatives to a mistrial, or even to make an on-therecord finding of manifest necessity—I conclude that there 

was an abuse of discretion. See, e.g., id., at 486; see also 

Washington, 434 U. S., at 525 (Marshall, J., dissenting) 

(manifest necessity requires showing “that there were no

meaningful and practical alternatives to a mistrial, or

that the trial court scrupulously considered available alternatives and found all wanting but a termination of the 

proceedings”).

Indeed, the only reason I can divine for the judge’s

failure to take this modest step is his misperception of 

Arkansas law with respect to the transitional instruction.

After the colloquy with the forewoman, the judge commented at sidebar that the jurors “haven’t even taken a

vote on [negligent homicide]. . . . I don’t think they’ve 

completed their deliberation. . . . I mean, under any rea-

—————— 

of discretion was ‘an unreasonable application of . . . clearly established

Federal law.’ ” 559 U. S., at ___ (slip op., at 5) (quoting 28 U. S. C. 

§2254(d)(1)); accord, 559 U. S., at ___, n. 3 (slip op., at 11, n. 3). Renico 

thus has little to say about a trial judge’s responsibilities, or this

Court’s, on direct review. Cf. Cullen v. Pinholster, 563 U. S. ___, ___ 

(2011) (slip op., at 30–31). 
 

Cite as: 566 U. S. ____ (2012) 13 

SOTOMAYOR, J., dissenting 

sonable circumstances, they would at least take a vote

on negligent homicide.” App. 65–66. And after the jury

retired for the last half-hour of deliberations, the judge

said, “I don’t think they have an understanding of really 

that they don’t have to get past every charge unanimously 

before they can move to the next charge.” Id., at 69. That 

misstated Arkansas law as well as the judge’s own instructions. The jury was required to reach a unanimous 

decision on a greater offense before considering a lesser. 

See supra, at 2–3. In discharging the jury, the judge said,

“Madam Foreman, there seems to be a lot of confusion on 

the part . . . of the jury about some of the instructions.

And because of the confusion and because of the timeliness 

and the amount of hours that has gone by without being 

able to reach a verdict, the Court is going to declare a

mistrial.” App. 69–70.

If, as these comments suggest, the judge wrongly believed that the jury was not required to reach unanimity 

on a greater offense before considering a lesser, then he 

accorded insufficient finality and weight to the forewoman’s earlier announcement of acquittal on capital and firstdegree murder. That mistake of law negates the deference 

due the judge’s decision to declare a mistrial. The judge

explained that the jury was being discharged in part based 

on its “confusion” with respect to the instructions, when in 

fact, the confusion was the judge’s. Ibid.; see, e.g., Washington, 434 U. S., at 510, n. 28 (“If the record reveals that 

the trial judge has failed to exercise the ‘sound discretion’ 

entrusted to him, the reason for . . . deference by an appellate court disappears”); Illinois v. Somerville, 410 U. S. 

458, 469 (1973) (critiquing “erratic” mistrial inquiry); Gori, 

367 U. S., at 371, n. 3 (Douglas, J., dissenting) (noting that

“[i]n state cases, a second prosecution has been barred 

where the jury was discharged through the trial judge’s

misconstruction of the law,” and collecting cases). And a 

trial court “by definition abuses its discretion when it 
 

 

14 BLUEFORD v. ARKANSAS 

SOTOMAYOR, J., dissenting 

makes an error of law.” Koon v. United States, 518 U. S. 

81, 100 (1996). 

* * * 

At its core, the Double Jeopardy Clause reflects the

wisdom of the founding generation, familiar to “‘every

person acquainted with the history of governments,’” that

“‘state trials have been employed as a formidable engine 

in the hands of a dominant administration. . . . To prevent 

this mischief the ancient common law . . . provided that 

one acquittal or conviction should satisfy the law.’” Ex 

parte Lange, 18 Wall. 163, 171 (1874) (quoting Commonwealth v. Olds, 15 Ky. 137, 139 (1824)). The Double Jeopardy Clause was enacted “‘[t]o perpetuate this wise rule,

so favorable and necessary to the liberty of the citizen

in a government like ours.’” 18 Wall., at 171. This case 

demonstrates that the threat to individual freedom from 

reprosecutions that favor States and unfairly rescue them 

from weak cases has not waned with time. Only this

Court’s vigilance has.

I respectfully dissent.