SMITH v. MASSACHUSETTS

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Syllabus
SMITH v. MASSACHUSETTS
certiorari to the appeals court of massachusetts
No. 03–8661. Argued December 1, 2004—Decided February 22, 2005
Petitioner was tried before a Massachusetts jury on charges related to a
shooting, including unlawful possession of a firearm. At the conclusion
of the prosecution’s case, petitioner moved for a not-guilty finding on
the firearm count because “the evidence [was] insufficient as a matter of
law to sustain a conviction,” Mass. Rule Crim. Proc. 25(a). The trial
judge granted the motion, finding no evidence to support the require-
ment of the unlawful possession count that the firearm have a barrel
shorter than 16 inches. The prosecution rested, and the trial proceeded
on the other counts. Before closing argument, the prosecution argued
that under Massachusetts precedent, the victim’s testimony that the de-
fendant shot him with a “pistol” or “revolver” sufficed to establish barrel
length. The judge “reversed” her previous ruling, allowing the firearm
count to go to the jury. The jury convicted petitioner on all counts.
In affirming, the Massachusetts Appeals Court held that the Double
Jeopardy Clause was not implicated because the trial judge’s correction
of her ruling had not subjected petitioner to a second prosecution or
proceeding, and held that Rule 25 did not prohibit the judge from recon-
sidering her decision.
Held:
1. Submitting the firearm count to the jury plainly subjected peti-
tioner to further “factfinding proceedings going to guilt or innocence,”
which are prohibited following a midtrial acquittal by the court, Smalis
v. Pennsylvania, 476 U. S. 140, 145. The ruling here met the definition
of an acquittal consistently used in this Court’s double-jeopardy cases.
In United States v. Martin Linen Supply Co., 430 U. S. 564, this Court
rejected reasoning identical to the Commonwealth’s claim that jeopardy
did not terminate midtrial because the judge’s determination was legal
rather than factual. How Massachusetts characterizes the ruling is
not binding on this Court. Smalis, supra, at 144, n. 5. What matters
is that, as the Massachusetts Rules authorize, the judge “evaluated
the [Commonwealth’s] evidence and determined that it was legally
insufficient to sustain a conviction.” Martin Linen, supra, at 572.
Pp. 466–469.
2. The Double Jeopardy Clause forbade the judge to reconsider the
acquittal later in the trial. While the Clause may permit States to cre-
ate a procedure for reconsidering a midtrial determination of insuffi-

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Syllabus
ciency of proof, Massachusetts had no such procedure at the time of
petitioner’s trial. Its Rules allowed only clerical errors, or those “aris-
ing from oversight or omission,” to be corrected at any time. Mass.
Rule Crim. Proc. 42. A few Commonwealth cases have provided that
interlocutory rulings are subject to reconsideration, but these cases,
without more, do not extend that principle to a not-guilty finding under
Rule 25, which purports not to be interlocutory but to end the case. A
seeming dismissal may induce a defendant to present a defense to the
undismissed charges when he would be better advised to stand silent.
The Double Jeopardy Clause cannot be allowed to become a potential
snare for those who reasonably rely on it. If, after a facially unqualified
midtrial acquittal on one count, the trial has proceeded to the defend-
ant’s introduction of evidence on the remaining counts, the acquittal
must be treated as final, unless the availability of reconsideration has
been plainly established by pre-existing rule or case authority expressly
applicable to midtrial rulings on the sufficiency of the evidence.
Pp. 469–475.
58 Mass. App. 166, 788 N. E. 2d 977, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Souter, and Thomas, JJ., joined. Ginsburg, J., filed a dis-
senting opinion, in which Rehnquist, C. J., and Kennedy and Breyer,
JJ., joined, post, p. 475.
David Nathanson argued the cause and filed briefs for
petitioner.
Cathryn A. Neaves, Assistant Attorney General of Massa-
chusetts, argued the cause for respondent. With her on the
brief were Thomas F. Reilly, Attorney General, Dean A.
Mazzone and Joseph M. Ditkoff, Special Assistant Attorneys
General, and David M. Lieber, Assistant Attorney General.
Sri Srinivasan argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief
were Acting Solicitor General Clement, Assistant Attorney
General Wray, and Deputy Solicitor General Dreeben.*
*Andrew H. Schapiro and Pamela Harris filed a brief for the National
Association of Criminal Defense Lawyers as amicus cur iae urging
reversal.
Briefs of amici curiae urging affirmance were filed for the State of
Idaho et al. by Lawrence G. Wasden, Attorney General of Idaho, and Ken-
neth K. Jorgensen, Lori A. Fleming, and Jessica M. Borup, Deputy Attor-

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464 SMITH v. MASSACHUSETTS
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
Midway through a jury trial, the judge acquitted petitioner
of one of the three offenses charged. The question pre-
sented in this case is whether the Double Jeopardy Clause
forbade the judge to reconsider that acquittal later in the
trial.
I
Petitioner Melvin Smith was tried before a jury in the
Superior Court of Suffolk County, Massachusetts, on charges
relating to the shooting of his girlfriend’s cousin. The in-
dictments charged three counts: armed assault with intent
to murder; assault and battery by means of a dangerous
weapon; and unlawful possession of a firearm. The “fire-
arm” element of the last offense requires proof that the
weapon had a barrel “less than 16 inches” in length. See
Mass. Gen. Laws Ann., ch. 140, § 121 (West 2002) (definition
of “firearm”); ch. 269, § 10(a) (West 2000). The indictment in
petitioner’s case so charged. Petitioner’s girlfriend was
tried before the same jury as an accessory after the fact.
neys General, Troy King, Attorney General of Alabama, Gregg D. Renkes,
Attorney General of Alaska, Terry Goddard, Attorney General of Arizona,
M. Jane Brady, Attorney General of Delaware, Mark J. Bennett, Attorney
General of Hawaii, Lisa Madigan, Attorney General of Illinois, Tom
Miller, Attorney General of Iowa, Mike McGrath, Attorney General of
Montana, Jon Bruning, Attorney General of Nebraska, Brian Sandoval,
Attorney General of Nevada, Kelly A. Ayotte, Attorney General of New
Hampshire, Wayne Stenehjem, Attorney General of North Dakota, Jim
Petro, Attorney General of Ohio, W. A. Drew Edmondson, Attorney Gen-
eral of Oklahoma, Hardy Myers, Attorney General of Oregon, Gerald J.
Pappert, Attorney General of Pennsylvania, Patrick C. Lynch, Attorney
General of Rhode Island, Mark L. Shurtleff, Attorney General of Utah,
William H. Sorrell, Attorney General of Vermont, Jerry W. Kilgore, At-
torney General of Virginia, and William E. Thor, State Solicitor General,
and Darrell V. McGraw, Jr., Attorney General of West Virginia; and for
the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles
L. Hobson.

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Opinion of the Court
The victim testified at trial that petitioner had shot him
with “a pistol,” specifically “a revolver” that “appeared to be
a .32 or a .38.” App. 12, 14. The prosecution introduced no
other evidence about the firearm.
At the conclusion of the prosecution’s case, petitioner
moved for a required finding of not guilty on the firearm
count, see Mass. Rule Crim. Proc. 25(a) (2002), in part be-
cause the Commonwealth had not proved that the gun barrel
was less than 16 inches. At sidebar, after hearing argument
from the prosecutor, the trial judge granted the motion, rea-
soning that there was “not a scintilla of evidence” that peti-
tioner had possessed a weapon with a barrel length of less
than 16 inches. App. 21. The trial court marked petition-
er’s motion with the handwritten endorsement “Filed and
after hearing, Allowed,” and the allowance of the motion was
entered on the docket. Consolidated Brief and Record
Appendix for Defendant in No. 00–P–1215 (Mass. App. Ct.),
p. A.21; App. 3. The sidebar conference then concluded, and
the prosecution rested.1 The judge did not notify the jury
of petitioner’s acquittal on the firearm count.
The defense case then proceeded. Petitioner’s codefend-
ant presented one witness, and both defendants then rested.
During the short recess before closing arguments, the prose-
cutor brought to the court’s attention a Massachusetts prece-
dent under which (he contended) the victim’s testimony
about the kind of gun sufficed to establish that the barrel
was shorter than 16 inches. He requested that the court
defer ruling on the sufficiency of the evidence until after
the jury verdict. The judge agreed, announcing orally that
she was “reversing” her previous ruling and allowing the
firearm-possession count to go to the jury. Id., at 75. Cor-
1 Although, before the judge ruled, the prosecutor had said that he
would “be requesting to reopen and allow [the victim] to testify to” the
barrel length, App. 22, he made no motion to reopen before resting his
case.

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Opinion of the Court
responding notations were made on the original of petition-
er’s motion and on the docket.
The jury convicted petitioner on all three counts, though
it acquitted his codefendant of the accessory charge. Peti-
tioner then submitted to a bench trial on an additional
repeat-offender element of the firearm-possession charge;
the judge found him guilty. Petitioner received a sentence
of 10 to 12 years’ incarceration on the firearm-possession
charge, concurrent with his sentence on the other counts.
Petitioner sought review in the Appeals Court of Massa-
chusetts. That court affirmed, holding that the Double
Jeopardy Clause was not implicated because the trial judge’s
correction of her ruling had not subjected petitioner to a
second prosecution or proceeding. It also rejected petition-
er’s argument that the trial judge’s initial ruling was final
because Massachusetts Rule of Criminal Procedure 25(a) re-
quired the judge to decide petitioner’s motion when it was
made, without reserving decision; 2 the court reasoned that
the Rule does not preclude the judge from reconsidering.
58 Mass. App. 166, 170–171, 788 N. E. 2d 977, 982–983 (2003).
The Supreme Judicial Court of Massachusetts denied fur-
ther appellate review. 440 Mass. 1104, 797 N. E. 2d 380
(2003). We granted certiorari. 542 U. S. 903 (2004).
II
Although the common-law protection against double jeop-
ardy historically applied only to charges on which a jury had
rendered a verdict, see, e. g., 2 M. Hale, Pleas of the Crown
2 The Rule provides in pertinent part:
“The judge on motion of a defendant or on his own motion shall enter a
finding of not guilty of the offense charged in an indictment or complaint
or any part thereof after the evidence on either side is closed if the evi-
dence is insufficient as a matter of law to sustain a conviction on the
charge. If a defendant’s motion for a required finding of not guilty is
made at the close of the Commonwealth’s evidence, it shall be ruled upon
at that time.” (Emphasis added.)

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*246, we have long held that the Double Jeopardy Clause of
the Fifth Amendment prohibits reexamination of a court-
decreed acquittal to the same extent it prohibits reexamina-
tion of an acquittal by jury verdict. See Richardson v.
United States, 468 U. S. 317, 325, n. 5 (1984); Sanabria v.
United States, 437 U. S. 54, 64, n. 18 (1978); United States v.
Martin Linen Supply Co., 430 U. S. 564, 573 (1977); United
States v. Sisson, 399 U. S. 267, 290 (1970). This is so
whether the judge’s ruling of acquittal comes in a bench trial
or, as here, in a trial by jury. See Fong Foo v. United States,
369 U. S. 141, 143 (1962) (per curiam); Sanabria, supra, at
77–78; Martin Linen, supra, at 565–566, 574–575.
Our cases have made a single exception to the principle
that acquittal by judge precludes reexamination of guilt no
less than acquittal by jury: When a jury returns a verdict of
guilty and a trial judge (or an appellate court) sets aside
that verdict and enters a judgment of acquittal, the Dou-
ble Jeopardy Clause does not preclude a prosecution appeal
to reinstate the jury verdict of guilty. United States v.
Wilson, 420 U. S. 332, 352–353 (1975). But if the prosecu-
tion has not yet obtained a conviction, further proceedings
to secure one are impermissible: “[S]ubjecting the defendant
to postacquittal factfinding proceedings going to guilt or in-
nocence violates the Double Jeopardy Clause.” Smalis v.
Pennsylvania, 476 U. S. 140, 145 (1986).
When the judge in this case first granted petitioner’s
motion, there had been no jury verdict. Submission of the
firearm count to the jury plainly subjected petitioner to fur-
ther “factfinding proceedings going to guilt or innocence,”
prohibited by Smalis following an acquittal. The first ques-
tion, then, is whether the judge’s initial ruling on petitioner’s
motion was, in fact, a judgment of acquittal.
It certainly appeared to be. Massachusetts Rule of Crim-
inal Procedure 25(a) directs the trial judge to enter a finding
of not guilty “if the evidence is insufficient as a matter of law
to sustain a conviction.” An order entering such a finding

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thus meets the definition of acquittal that our double-
jeopardy cases have consistently used: It “actually repre-
sents a resolution, correct or not, of some or all of the factual
elements of the offense charged.” Martin Linen, supra, at
571; accord, e. g., Price v. Vincent, 538 U. S. 634, 640 (2003);
Burks v. United States, 437 U. S. 1, 10 (1978).
The Commonwealth contends that the grant of a motion
for a required finding of not guilty in a jury trial is a purely
legal determination, the factfinding function being reserved
to the jury. Brief for Respondent 14 (citing Commonwealth
v. Lowder, 432 Mass. 92, 96–97, 731 N. E. 2d 510, 515 (2000)).
Thus, the Commonwealth reasons, jeopardy did not termi-
nate midtrial on any of the three counts, since neither judge
nor jury had rendered a factual determination that would
bring jeopardy to an end. We rejected identical reasoning
in Martin Linen, supra, holding that jeopardy ends when,
following discharge of a hung jury, a judge grants a motion
for judgment of acquittal under Federal Rule of Criminal
Procedure 29. Rule 29 created the judge-ordered “judg-
ment of acquittal” in place of the directed verdict, which was
at least fictionally returned by the jury at the judge’s direc-
tion, rather than coming from the judge alone. But, we said
in Martin Linen, change in nomenclature and removal of the
jury’s theoretical role make no difference; the Rule 29 judg-
ment of acquittal is a substantive determination that the
prosecution has failed to carry its burden. Thus, even when
the jury is the primary factfinder, the trial judge still re-
solves elements of the offense in granting a Rule 29 motion
in the absence of a jury verdict. See Martin Linen, supra,
at 571–575.
The same is true here. (Indeed, Massachusetts patterned
its Rule 25 on Federal Rule 29 and adopted prior directed-
verdict practice without change. See Lowder, supra, at 95,
731 N. E. 2d, at 514.) Massachusetts’ characterization of the
required finding of not guilty as a legal rather than factual
determination is, “as a matter of double jeopardy law, . . .

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not binding on us,” Smalis, supra, at 144, n. 5; what matters
is that, as the Massachusetts Rules authorize, the judge
“evaluated the [Commonwealth’s] evidence and determined
that it was legally insufficient to sustain a conviction.”
Martin Linen, supra, at 572.
III
Having concluded that the judge acquitted petitioner of
the firearm-possession charge,3 we must turn to the more
difficult question whether the Double Jeopardy Clause per-
mitted her to reconsider that acquittal once petitioner and
his codefendant had rested their cases.4
3 It is of no moment that jeopardy continued on the two assault charges,
for which the jury remained empaneled. Double-jeopardy analysis fo-
cuses on the individual “offence” charged, U. S. Const., Amdt. 5, and our
cases establish that jeopardy may terminate on some counts even as it
continues on others. See, e. g., Price v. Georgia, 398 U. S. 323, 329 (1970).
4 The dissent emphasizes that the acquittal was reconsidered “before the
court of first instance ha[d] disassociated itself from the case or any issue
in it,” whereas in Smalis v. Pennsylvania, 476 U. S. 140 (1986), the
government sought reconsideration by appealing. Post, at 477–478 (opin-
ion of Ginsburg, J.). That distinction is not a relevant one. Smalis
squarely held, not that further factfinding proceedings were barred be-
cause there had been an appeal, but that appeal was barred because fur-
ther factfinding proceedings before the trial judge (the factfinder who had
pronounced the acquittal) were impermissible. 476 U. S., at 145. Like-
wise, we recognized in Justices of Boston Municipal Court v. Lydon, 466
U. S. 294 (1984), that in a “two-tier” trial system amounting to “ ‘a single,
continuous course of judicial proceedings,’ ” acquittal at the first stage can-
not be reconsidered later in the two-tier process. Id., at 309, 312. These
cases establish that an acquittal, once final, may not be reconsidered on
appeal or otherwise.
The dissent misses the point of Swisher v. Brady, 438 U. S. 204 (1978),
which found no double-jeopardy bar to a judge’s review of a master’s find-
ings. This was not a “recogni[tion of] the distinction between appeals
and continuing proceedings before the initial tribunal,” post, at 478, but
rather a recognition that the initial jeopardy does not end until there is a
final decision. See 438 U. S., at 216 (“[I]t is for the State, not the par-
ties, to designate and empower the factfinder and adjudicator. And here

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It is important to note, at the outset, that the facts of this
case gave petitioner no reason to doubt the finality of the
state court’s ruling. The prosecutor did not make or re-
serve a motion for reconsideration, or seek a continuance
that would allow him to provide the court with favorable
authority. Rather, the sidebar conference concluded, the
court asked the prosecutor if he had “any further evidence,”
and he replied, “No. At this point, the Commonwealth rests
their case.” App. 22. Nor did the court’s ruling appear on
its face to be tentative. The trial court was not permitted
by Massachusetts procedure to defer ruling on petitioner’s
motion, Mass. Rule Crim. Proc. 25(a), or to require the de-
fendants to go forward with their cases while the prosecution
reserved the right to present more evidence, Commonwealth
v. Cote, 15 Mass. App. 229, 242, 444 N. E. 2d 1282, 1290–1291
(1983). And when the prosecutor suggested that he be
given a chance to reopen his case before the defendants pro-
ceeded, the court rejected the suggestion because it was
time to rule on petitioner’s motion. App. 22; n. 1, supra.
Was this apparently final ruling in fact final? We think,
and petitioner does not dispute, see Tr. of Oral Arg. 5, that
as a general matter state law may prescribe that a judge’s
midtrial determination of the sufficiency of the State’s proof
can be reconsidered. Cf. Pennsylvania v. Goldhammer, 474
U. S. 28, 30 (1985) (per curiam) (state law regarding appeal-
ability may affect defendant’s expectation that a sentence is
final for double-jeopardy purposes). We can find no instance
in which a State has done this by statute or rule, but some
Maryland has conferred those roles only on the Juvenile Court judge.
Thus, regardless of which party is initially favored by the master’s propos-
als, . . . the judge is empowered to accept, modify, or reject those propos-
als”). The dissent is quite right that the taking of an appeal “necessarily
signals” the finality of the order appealed, post, at 477; that does not estab-
lish, however, that the absence of an appeal necessarily connotes the
nonfinality that differentiates the master’s finding in Swisher from the
midtrial acquittal in this case.

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state courts have held, as a matter of common law or in the
exercise of their supervisory power, that a court-directed
judgment of acquittal is not effective until it is signed and
entered in the docket, Harden v. State, 160 Ga. App. 514, 515,
287 S. E. 2d 329, 331 (1981), until a formal order is issued,
State v. Collins, 112 Wash. 2d 303, 308–309, 771 P. 2d 350,
353 (1989), or until the motion hearing is concluded, Watson
v. State, 410 So. 2d 207, 209 (Fla. App. 1982).
At the time of petitioner’s trial, however, Massachusetts
had not adopted any such rule of nonfinality. Its Rules of
Criminal Procedure provided that only clerical errors in a
judgment or order, or errors “arising from oversight or omis-
sion,” were subject to correction at any time. Mass. Rule
Crim. Proc. 42 (2002). Massachusetts cites a few common-
wealth cases supporting the general proposition that inter-
locutory rulings (rulings on pretrial motions, evidentiary
rulings, and the like) are subject to reconsideration. But it
is far from obvious that this principle extends to entry of a
required finding of not guilty under Rule 25 (or to its
common-law predecessor, the directed verdict)—which on its
face, at least, purports not to be interlocutory but to end the
case. We think much more was required here.
It may suffice for an appellate court to announce the
state-law rule that midtrial acquittals are tentative in a case
where reconsideration of the acquittal occurred at a stage in
the trial where the defendant’s justifiable ignorance of the
rule could not possibly have caused him prejudice.5 But
when, as here, the trial has proceeded to the defendant’s
5 In Price v. Vincent, 538 U. S. 634 (2003), a habeas case presenting facts
similar to those here, the judge granted a partial acquittal but reconsid-
ered before the trial proceeded, and the Michigan courts concluded that
no double-jeopardy violation had occurred. Id., at 637–638. We held that
conclusion to be not “an unreasonable application of . . . Federal law,”
28 U. S. C. § 2254(d)(1), in part because, as the Michigan Supreme Court
observed, “no trial proceedings took place with respondent laboring under
the mistaken impression that he was not facing the possibility of convic-
tion for” the purportedly acquitted charge. 538 U. S., at 642–643, and n. 1.

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presentation of his case, the possibility of prejudice arises.
The seeming dismissal may induce a defendant to present a
defense to the undismissed charges when he would be better
advised to stand silent. Many jurisdictions still follow the
traditional rule that after trial or on appeal, sufficiency-of-
the-evidence challenges are reviewed on the basis of the en-
tire trial record, even if the defendant moved for acquittal
when the prosecution rested and the court erroneously de-
nied that motion. E. g., Smith v. State, 509 P. 2d 1391, 1397
(Okla. Crim. App. 1973); Deal v. State, 657 P. 2d 404, 405
(Alaska App. 1983) (per curiam). See generally Comment,
The Motion for Acquittal: A Neglected Safeguard, 70 Yale
L. J. 1151, 1152–1158 (1961). In these jurisdictions, the de-
fendant who puts on a case runs “the risk that . . . he will
bolster the Government case enough for it to support a ver-
dict of guilty.” McGautha v. California, 402 U. S. 183, 215
(1971). The defendant’s evidence “may lay the foundation
for otherwise inadmissible evidence in the Government’s
initial presentation or provide corroboration for essential
elements of the Government’s case. ” United States v.
Calderon, 348 U. S. 160, 164, n. 1 (1954) (citation omitted).
In all jurisdictions, moreover, false assurance of acquittal
on one count may induce the defendant to present defenses
to the remaining counts that are inadvisable—for example,
a defense that entails admission of guilt on the acquitted
count.6
6 In multiple-defendant cases like this one, an apparent final dismissal of
one defendant may also cause the others to alter their cases in harmful
ways. They would, for example, proceed under the mistaken belief that
they need no longer fear the acquitted defendant’s assertion of a defense
antagonistic to their own, and might assume that the acquitted defendant
would become available as a defense witness. Cf. Washington v. Texas,
388 U. S. 14, 22–23 (1967) (discussing reasons to allow testimony of a pur-
ported accomplice after accomplice’s acquittal). While the potential effect
upon codefendants has no bearing upon this petitioner’s double-jeopardy
claim, it does confirm the wisdom of the rule we adopt.

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The Double Jeopardy Clause’s guarantee cannot be al-
lowed to become a potential snare for those who reasonably
rely upon it. If, after a facially unqualified midtrial dis-
missal of one count, the trial has proceeded to the defendant’s
introduction of evidence, the acquittal must be treated as
final, unless the availability of reconsideration has been
plainly established by pre-existing rule or case authority ex-
pressly applicable to midtrial rulings on the sufficiency of the
evidence. That requirement was not met here. The Com-
monwealth has failed to show that under state procedure as
it existed at the time of petitioner’s trial, the trial court’s
ruling on the motion for a required finding of not guilty was
automatically, or even presumptively, nonfinal. At most it
has shown that the ruling was wrong because the Common-
wealth’s evidence was, as a matter of law, sufficient—a point
that the dissent emphasizes, echoing the opinion below. See
post, at 476–477, 479. But any contention that the Double
Jeopardy Clause must itself (even absent provision by the
State) leave open a way of correcting legal errors is at odds
with the well-established rule that the bar will attach to a
preverdict acquittal that is patently wrong in law. See, e. g.,
Smalis, 476 U. S., at 144, n. 7; Sanabria, 437 U. S., at 68–69,
75, 78; Martin Linen, 430 U. S., at 571; Fong Foo, 369 U. S.,
at 143.7
7 The dissent goes to great lengths to establish that there was no preju-
dice here, since the acquittal was legally wrong and the defendant was
deprived of no available defense. See post, at 476–480. But the Double
Jeopardy Clause has never required prejudice beyond the very exposure
to a second jeopardy. To put it differently: Requiring someone to defend
against a charge of which he has already been acquitted is prejudice per
se for purposes of the Double Jeopardy Clause—even when the acquittal
was erroneous because the evidence was sufficient. See, e. g., Sanabria
v. United States, 437 U. S. 54, 77–78 (1978). Of course it is not even clear
that the dissent’s due-process analysis would acknowledge prejudice when
a midtrial acquittal was correct when rendered, so long as evidence suffi-
cient to sustain the charge was eventually introduced (after the acquittal
and during the defendant’s case, see supra, at 472). Our double-jeopardy
cases make clear that an acquittal bars the prosecution from seeking “an-

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Massachusetts argues that if the Double Jeopardy Clause
does not allow for reconsideration, every erroneous grant of
a directed-verdict motion will be unremediable, even one at-
tributable to mistaken expression that is promptly corrected.
We think not. Double-jeopardy principles have never been
thought to bar the immediate repair of a genuine error in
the announcement of an acquittal, even one rendered by a
jury. See M. Friedland, Double Jeopardy 61 (1969); King v.
Parkin, 1 Mood. 45, 46–47, 168 Eng. Rep. 1179, 1180 (1824).
And of course States can protect themselves still further
against the “occasional errors” of law that the dissent thinks
“inevitabl[e]” in the course of trial, post, at 478, by rendering
midtrial acquittals nonfinal. (Massachusetts, as we have
observed, has specifically provided for the correction of mis-
taken utterances or scrivener’s errors, but not for the recon-
sideration of legal conclusions. See Mass. Rule Crim. Proc.
42 (2002).)
Prosecutors are not without protection against ill-
considered acquittal rulings. States can and do craft pro-
cedural rules that allow trial judges “the maximum oppor-
tunity to consider with care a pending acquittal motion,”
Martin Linen, supra, at 574, including the option of defer-
ring consideration until after the verdict. See, e. g., D. C.
Super. Ct. Crim. Proc. Rule 29(b) (2003); N. Y. Crim. Proc.
Law Ann. § 290.10(1)(b) (West 2002); W. Va. Rule Crim. Proc.
29(b) (2004). (At least one State has altogether precluded
midtrial acquittals by the court. See Nev. Rev. Stat. Ann.
§ 175.381(1) (2001).) Moreover, a prosecutor can seek to per-
suade the court to correct its legal error before it rules, or
at least before the proceedings move forward. See Price v.
Vincent, 538 U. S., at 637–638, 642–643, and n. 1. Indeed,
the prosecutor in this case convinced the judge to reconsider
her acquittal ruling on the basis of legal authority he had
obtained during a 15-minute recess before closing argu-
other opportunity to supply evidence which it failed to muster” before
jeopardy terminated. Burks v. United States, 437 U. S. 1, 11 (1978).

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475 Cite as: 543 U. S. 462 (2005)
Ginsburg, J., dissenting
ments. See App. 71–72, 74. Had he sought a short continu-
ance at the time of the acquittal motion, the matter could
have been resolved satisfactorily before petitioner went for-
ward with his case.
* * *
The judgment of the Appeals Court of Massachusetts is
reversed, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
Justice Ginsburg, with whom The Chief Justice,
Justice Kennedy, and Justice Breyer join, dissenting.
Does the Double Jeopardy Clause bar the States from
allowing trial judges to reconsider a midtrial grant of a mo-
tion to acquit on one or more but fewer than all counts of an
indictment? The Court unanimously answers “No.” See
ante, at 470 (“[A]s a general matter state law may prescribe
that a judge’s midtrial determination of the sufficiency of the
State’s proof can be reconsidered.”). A State may provide
for such reconsideration, the Court also recognizes, by legis-
lation or by judicial rule, common-law decision, or exercise
of supervisory power. See ante, at 470–471. According to
the Appeals Court of Massachusetts, the Commonwealth has
so provided through its decisional law. 58 Mass. App. 166,
171, 788 N. E. 2d 977, 983 (2003); see Commonwealth v. Has-
kell, 438 Mass. 790, 792, 784 N. E. 2d 625, 628 (2003)
(“A judge’s power to reconsider his own decisions during the
pendency of a case is firmly rooted in the common law . . . .”).
The view held by the Massachusetts court on this issue is
hardly novel. See, e. g., United States v. LoRusso, 695 F. 2d
45, 53 (CA2 1982) (“A district court has the inherent power
to reconsider and modify its interlocutory orders prior to the
entry of judgment . . . .”); cf. Fed. Rule Civ. Proc. 54(b) (Ab-
sent “entry of a final judgment as to one or more but fewer
than all of the claims or parties,” “any order or other form
of decision, however designated, which adjudicates fewer

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476 SMITH v. MASSACHUSETTS
Ginsburg, J., dissenting
than all the claims or the rights and liabilities of fewer than
all the parties shall not terminate the action as to any of the
claims or parties, and the order or other form of decision is
subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all
the parties.”).
Nevertheless, the trial court here was locked into its on-
the-spot error, the Court maintains, because “the availabil-
ity of reconsideration [had not] been plainly established by
pre-existing rule or case authority expressly applicable to
midtrial rulings on the sufficiency of the evidence.” Ante,
at 473. Otherwise, according to the Court, “[t]he Double
Jeopardy Clause’s guarantee [would] become a potential
snare for those who reasonably rely upon it.” Ibid.
I agree that, as a trial unfolds, a defendant must be ac-
corded a timely, fully informed opportunity to meet the
State’s charges. I would so hold as a matter not of double
jeopardy, but of due process. See Gray v. Netherland, 518
U. S. 152, 171 (1996) (Ginsburg, J., dissenting) (“Basic to
due process in criminal proceedings is the right to a full,
fair, potentially effective opportunity to defend against the
State’s charges.”). On the facts presented here, however, as
the Massachusetts Appeals Court observed, see 58 Mass.
App., at 171, 788 N. E. 2d, at 983, defendant-petitioner Smith
suffered no prejudice fairly attributable to the trial court’s
error.
The trial judge in Smith’s case acted impatiently and made
a mistake at the close of the Commonwealth’s case. Cut-
ting short the prosecutor’s objections, see App. 20–22, she
granted Smith’s motion for a “required finding of not guilty”
on one of the three charges contained in the indictment, un-
lawful possession of a firearm, id., at 20.1 She did so on the
ground that the Commonwealth had failed to prove an essen-
1 The other charges, on which no motion to acquit was made, were as-
sault with intent to murder, and assault and battery by means of a danger-
ous weapon.

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477 Cite as: 543 U. S. 462 (2005)
Ginsburg, J., dissenting
tial element of the crime, i. e., that the barrel of the gun
Smith was charged with possessing was less than 16 inches.
See Mass. Gen. Laws Ann., ch. 269, § 10(a) (West 2000) (ren-
dering possession of a “firearm,” unless exempted, unlawful);
ch. 140, § 121 (West 2002) (defining “firearm” as a “pistol” or
“revolver” with a barrel length “less than 16 inches”). The
ruling for Smith was endorsed on the motion and recorded
on the docket, but it was not communicated to the jury.
The trial judge corrected her error the same day it was
made. She did so in advance of closing arguments and her
charge to the jury. See App. 71–74. The trial judge re-
tracted her initial ruling and denied the motion for a
required finding of not guilty because the prosecutor had
called to her attention a decision of the Supreme Judicial
Court of Massachusetts directly on point, Commonwealth v.
Sperrazza, 372 Mass. 667, 363 N. E. 2d 673 (1977). In that
case, Massachusetts’ highest court held that a jury may infer
a barrel length of less than 16 inches from testimony that
the weapon in question was a revolver or handgun. Id., at
670, 363 N. E. 2d, at 675. Here, there was such testimony.
The victim in Smith’s case had testified that the gun he saw
in the defendant’s hand was a “.32 or .38” caliber “pistol.”
App. 12. The trial court’s new ruling based on Sperrazza
was entered on the docket, Smith did not move to reopen the
case, and the jury convicted him on all charges.
Smith urges that our decision in Smalis v. Pennsylvania,
476 U. S. 140 (1986), controls this case. I disagree. In
Smalis, the Court held that the Double Jeopardy Clause bars
appellate review of a trial court’s grant of a motion to acquit,
because reversal would lead to a remand for further trial
proceedings. Id., at 146. An appeal, including an interlocu-
tory appeal, moves a case from a court of first instance to an
appellate forum, and necessarily signals that the trial court
has ruled with finality on the appealed issue or issues. A
trial court’s reconsideration of its initial decision to grant a
motion, on the other hand, occurs before the court of first

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478 SMITH v. MASSACHUSETTS
Ginsburg, J., dissenting
instance has disassociated itself from the case or any issue in
it. Trial courts have historically revisited midtrial rulings,
as earlier noted, see supra, at 475–476, for the practical exi-
gencies of trial mean that judges inevitably will commit occa-
sional errors. In contrast, the government traditionally
could pursue no appeal at any stage of a criminal case, how-
ever mistaken the trial court’s prodefense ruling. See
United States v. Scott, 437 U. S. 82, 84–86 (1978) (discussing
the evolution of the Government’s right to appeal). This
Court has long recognized the distinction between appeals
and continuing proceedings before the initial tribunal prior
to the rendition of a final adjudication. Compare Fed. Rule
Civ. Proc. 54(b), quoted supra, at 475–476, and Swisher v.
Brady, 438 U. S. 204, 215–216 (1978) (no double jeopardy bar
to the State’s exceptions to a master’s findings where an ac-
cused juvenile “is subjected to a single proceeding which be-
gins with a master’s hearing and culminates with an adjudi-
cation by a judge”), with Kepner v. United States, 195 U. S.
100, 133 (1904) (Double Jeopardy Clause bars the Govern-
ment’s appeal to a higher court after acquittal of the defend-
ant by the “court of first instance”).
Nor is Massachusetts Rule of Criminal Procedure 25(a)
(2002) dispositive here. That Rule states: “If a defendant’s
motion for a required finding of not guilty is made at the
close of the Commonwealth’s evidence, it shall be ruled upon
at that time.” (Emphasis added.) While Rule 25(a) plainly
instructs an immediate ruling on the motion, it says nothing
about reconsideration.
The Appeals Court of Massachusetts determined that Rule
25(a) did not place the incorrect midtrial ruling beyond the
trial court’s capacity to repair its error. Rule 25(a)’s demand
for an immediate ruling rather than reservation of the ques-
tion,2 the Appeals Court said, “protects a defendant’s right
2 Cf. Fed. Rule Crim. Proc. 29(b) (providing that a trial court may re-
serve decision on a defendant’s challenge to the sufficiency of the evidence

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Ginsburg, J., dissenting
to insist that the Commonwealth present proof of every ele-
ment of the crime with which he is charged before he decides
whether to rest or to introduce proof.” 58 Mass. App., at
171, 788 N. E. 2d, at 982–983 (quoting Commonwealth v.
Cote, 15 Mass. App. 229, 240, 444 N. E. 2d 1282, 1289 (1983)).3
That protection was accorded the defendant here, the court
observed, for the Commonwealth’s evidence, presented be-
fore the “required finding of not guilty” motion was made
and granted, in fact sufficed to prove every element of the
firearm possession charge. See 58 Mass. App., at 171, 788
N. E. 2d, at 983. Rule 25(a) does not import more, the Ap-
peals Court indicated. Because the jury remained seated
with no break in the trial, and the defendant retained the
opportunity to counter the Commonwealth’s case,4 that court
concluded, neither Rule 25(a) nor the Double Jeopardy
Clause froze as final the erroneous midtrial ruling on the
firearm possession charge. I would not pretend to compre-
hend Rule 25(a) or Massachusetts’ decisional law regard-
ing state practice better than the Massachusetts Appeals
Court did.
until after the jury has returned a verdict). Several States follow the
federal model. See, e. g., Alaska Rule Crim. Proc. 29(b) (2004); Del. Super.
Ct. Rule Crim. Proc. 29(b) (2004); Iowa Rule Crim. Proc. 2.19(8)(b) (2004);
N. Y. Crim. Proc. Law Ann. § 290.10(1) (West 2002); W. Va. Rule Crim.
Proc. 29(b) (2004).
3 Counsel for petitioner suggested at oral argument that the protection
is more theoretical than real, for “what [judges] do as . . . a matter of
practice in Massachusetts is they simply deny [the motion].” Tr. of Oral
Arg. 56 (also noting that the motion to acquit may be renewed at the close
of defendant’s case and after the jury has returned a verdict).
4 The Court hypothesizes that dismissal of one count might affect a de-
fendant’s course regarding the undismissed charges. Ante, at 472. The
Appeals Court addressed that prospect concretely: Defendant Smith “has
not suggested that the initial allowance of the motion affected his trial
strategy with regard to the other charges.” 58 Mass. App. 166, 171, 788
N. E. 2d 977, 983 (2003). Further, there is not even the slightest sugges-
tion that Smith’s codefendant, who was acquitted by the jury, “alter[ed]
[her case] in harmful ways.” But see ante, at 472, n. 6.

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480 SMITH v. MASSACHUSETTS
Ginsburg, J., dissenting
In sum, Smith was subjected to a single, unbroken trial
proceeding in which he was denied no opportunity to air his
defense before presentation of the case to the jury. I would
not deny prosecutors in such circumstances, based on a trial
judge’s temporary error, one full and fair opportunity to
present the State’s case.