Clause generally would not stand in the way of reprosecution. Only if the underlying error was "motivated by bad faith or undertaken to harass or prejudice," id., at 611, would there be any barrier to retrial:

"The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad-faith conduct by judge or prosecutor,' United States v. Jorn, supra, at 485, threatens the '[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. Downum v. United States, 372 U. S. [734, 736 (1963)]...." Ibid.

It remains only to apply these principles to the present case.

C

In this case, as in Dinitz, the proceedings were terminated at the defendant's request and with his consent. Although petitioner's motion to dismiss the information was initially denied in the course of opening arguments just before the attachment of jeopardy, the court's remarks left little doubt that the denial was subject to further consideration at an available opportunity in the proceedings-a fact of which the court reminded counsel after the close of the prosecution's evidence. Counsel for petitioner made no effort to withdraw the motion, either after the initial denial or after the court's reminder that the motion was still under consideration. And counsel offered no objection when the court, having expressed its views on petitioner's guilt, decided to terminate the proceedings without having entered any formal finding on the general issue.

It follows under Dinitz that there was no double jeopardy barrier to petitioner's retrial unless the judicial or prosecu

BRENNAN, J., concurring

432 U.S.

torial error that prompted petitioner's motion was "intended to provoke" the motion or was otherwise "motivated by bad faith or undertaken to harass or prejudice" petitioner. Supra, at 33. Here, two underlying errors are alleged: the prosecutor's failure to draft the information properly and the court's denial of the motion to dismiss prior to the attachment of jeopardy. Neither error-even assuming the court's action could be so characterized-was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the court's failure to postpone the taking of evidence until it could give full consideration to the defendant's motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise impress upon the court the importance to petitioner of not being placed in jeopardy on a defective charge.10

We hold that petitioner's retrial after dismissal of the defective information at his request did not violate the Double Jeopardy Clause.

MR. JUSTICE BRENNAN, concurring.

Affirmed.

I join the Court's opinion. In so doing, I want to make plain that I read the opinion as signaling no retreat from a cardinal principle of double jeopardy law: A criminal defendant possesses a "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U. S. 684, 689 (1949), and the trial judge is obligated to take reasonable action in protection of this right, United States v. Jorn, 400 U. S. 470, 485-486 (1971) (plurality opinion). In the present case I agree with the Court that the conduct of the prosecutor

10 What has been said is sufficient to dispose of petitioner's further claim that his retrial violated the Due Process Clause of the Fifth Amendment. Cf. Palko v. Connecticut, 302 U. S. 319, 328 (1937).

23

BRENNAN, J., concurring

did not constitute unfair overreaching, and the conduct of the District Court was "entirely reasonable" in proceeding with the trial and ruling on petitioner's motion after further study. Although jeopardy had not officially attached, the defendant's motion to dismiss the information appeared so late in the day during the opening statements-as virtually to guarantee that the trial judge would act as he did. This is especially true in the case of a challenge to an information charging an assimilated crime, for prudence might well counsel a federal judge's delaying any ruling pending further study. Certainly in this case the District Court cannot be faulted for failing to foresee that defendant's legal contention would be so easily resolved. While a continuance of the trial would have been a possibility if sought by petitioner or even on the court's own motion, I agree that the trial judge performed reasonably in not sua sponte stopping a trial in the middle of the opening statements and before any evidence was taken. I emphasize, however, that an entirely different case would be presented if the petitioner had afforded the trial judge ample opportunity to rule on his motion prior to trial, and the court, in failing to take advantage of this opportunity, permitted the attachment of jeopardy before ordering the dismissal of the information. In such a circumstance, the court's action or inaction would effectively deprive petitioner of his "valued right" to receive a factual determination from the first empaneled factfinder and would subject a defendant to the "embarrassment, expense and ordeal" of a needless trial, Green v. United States, 355 U. S. 184, 187 (1957). Even if the defendant renews his motion at trial, it would not be accurate in such a situation to argue that the defense has made the choice to forgo the right of presenting its case to the first factfinder in order to attain a beneficial legal ruling. United States v. Dinitz, 424 U. S. 600 (1976); United States v. Jorn, supra, at 485. On the contrary, the defendant placed in this predicament by the trial judge would have done

REHNQUIST, J., concurring

432 U.S.

everything in his power to receive a fair adjudication of his legal claims without compromising his right to proceed with the first factfinder. Honoring his double jeopardy claim thus not only is in keeping with the policies and interests served by the Clause, but also would further the cause of efficient judicial administration by encouraging defendants to present, and judges to rule, on legal claims prior to the clamor and heat of trial.

MR. JUSTICE REHNQUIST, Concurring.

When two Terms ago the Court decided Jenkins v. United States, 420 U. S. 358 (1975), and United States v. Wilson, 420 U. S. 332 (1975), I had thought that a precedential foundation had been laid for double jeopardy analysis which, though perhaps somewhat oversimplified, would at least afford all of the many courts in the country which must decide such questions explicit guidance as to what we deemed the Constitution to require. I thought that dismissals (as opposed to mistrials) if they occurred at a stage of the proceeding after which jeopardy had attached, but prior to the factfinder's conclusion as to guilt or innocence, were final so far as the accused defendant was concerned and could not be appealed by the Government because retrial was barred by double jeopardy. This made the issue of double jeopardy turn very largely on temporal considerations-if the Court granted an order of dismissal during the factfinding stage of the proceedings, the defendant could not be reprosecuted, but if the dismissal came later, he could. I had thought that United States v. Perez, 9 Wheat. 579 (1824), and Illinois v. Somerville, 410 U. S. 458 (1973), offered a different basis for the treatment of mistrials, which by definition contemplate a second prosecution.

This "bright line" analysis was circumvented, however, by the Court's decision in United States v. Martin Linen Supply Co., 430 U. S. 564 (1977), in which I did not take part.

23

MARSHALL, J., dissenting

There the Court held that even though the judgment of acquittal by the court (which I would not treat differently from a judgment of dismissal) occurred after the factfinding portion of the proceedings had aborted in a mistrial, but before the attachment of any jeopardy in a second trial, the second trial was nonetheless barred by double jeopardy.

In view of this development, I feel free to re-examine the assumptions I made when writing Jenkins and voting in Wilson. I think that the Court's opinion in the present case, though not completely in accord with those assumptions, is a well-articulated and historically defensible exposition of the Double Jeopardy Clause of the Bill of Rights. Since my assumptions did not at any rate survive United States v. Martin Linen Supply Co., supra, I join the Court's opinion.

MR. JUSTICE MARSHALL, dissenting.

It is apparent to me that this Court has today deliberately passed up an opportunity to exercise its supervisory power to prohibit rather than to condone fundamental errors in criminal procedure. At the close of its opinion, ante, at 34, the Court states the problem and its solution:

"Here, two underlying errors are alleged: the prosecutor's failure to draft the information properly and the court's denial of the motion to dismiss prior to the attachment of jeopardy. Neither error-even assuming the court's action could be so characterized-was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejuIdicial to the Government as to the defendant. And the Court's failure to postpone the taking of evidence until it could give full consideration to the defendant's motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise