appeal by the Government from his successful effort to do
so is not barred by 18 U.S.C. § 3731,” which permits
appeals not barred by double jeopardy. Id. at 101. The
Court expressly overruled United States v. Jenkins, 420
U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), which
barred retrial after midtrial dismissal.
Sanabria v. United States, 437 U.S. 54, 98 S.Ct.
2170, 57 L.Ed.2d 43 (1978), decided on the same day
as Scott, establishes however, that not all midtrial
dispositions are appealable. In Sanabria, a midtrial
ruling resulted in the exclusion of evidence, and a
judgment of acquittal was entered. The Supreme Court
emphasized the long-standing rule that a defendant may
not be retried after acquittal even if the legal ruling
underlying the acquittal was wrong. The Court expressly
held that the fact that defendant makes the motion for
acquittal constitutes no waiver.
Pre-trial dismissals not based on determination of
guilt or innocence, Serfass v. United States, 420 U.S. 377,
95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), and post-guilty-
verdict dismissals and acquittals, United States v. Martin
Linen Supply, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d
642 (1977); United States v. Wilson, 420 U.S. 332, 95
S.Ct. 1013, 43 L.Ed.2d 232 (1975), are appealable.
In State in Interest of C.K., 198 N.J. Super. 290 (App.
Div. 1984), the trial judge perceived technical
deficiencies in the State’s proof against two juveniles and
found them not guilty on all charges. The prosecution
nevertheless obtained a “continuance” of the trial. After
the prosecution corrected the “deficiencies,” the trial
judge found the juveniles guilty of all charges. One of the
juveniles appealed. The Appellate Division held that the
trial judge’s adjudication of delinquency constituted a
clear violation of the Double Jeopardy Clause, stating
that a “judgment of acquittal [or finding of not guilty],
however erroneous, bars further prosecution....” 198
N.J. Super. at 294-95. See also State v. Woodlands
Condominium Assoc., 204 N.J. Super. 85 (Law Div. 1985)
(in absence of order of dismissal or written opinion which
could have been sought, State may not seek reversal of,
nor may any reviewing court reverse those legal
determinations resolved in defendant’s favor and
resulting in acquittal).
Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57
L.Ed.2d 705 (1978). Maryland procedure provided for
a master to hear evidence on juvenile charges, to make
findings of fact, and to submit a report to the juvenile
court. The same procedure authorized the court to
accept, modify or reject the master’s report. Petitioner
sued for an injunction, pursuant to 28 U.S.C. § 1983, to
enjoin the State from filing exceptions to the master’s
conclusion that the State failed to show that petitioners
committed the acts that they were charged with
committing. The Supreme Court viewed the process as
a single proceeding which began with the master and
ended with an adjudication by the judge. Thus, the
Court held that double jeopardy did not bar the juvenile
court from reviewing the record and reaching its own
conclusions, or bar the State from taking exception to the
master’s conclusion. The Court stated that double
jeopardy bars only those proceedings requiring
supplementary findings which follow a previous trial
ending in acquittal, or in conviction when it is not
reversed on appeal or reversed on the basis of insufficient
evidence. Accord, State v. Barnes, 84 N.J. 362 (1980).In United States v. Martin Linen Supply Co., 430 U.S.
564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), a federal
district court judge granted defendant’s motion for
judgment of acquittal after a deadlocked jury was
discharged. The Supreme Court held that the Double
Jeopardy Clause barred retrial after the first trial ended in
a valid judgment of acquittal premised upon the
Government’s failure to prove its case. The Court noted,
however, that entry of a judgment n.o.v. after a guilty
verdict would be appealable.In Finch v. United States, 433 U.S. 676, 97 S.Ct.
2909, 53 L.Ed.2d 1048 (1977), the government
appealed from a federal district court’s order dismissing
a criminal indictment, on a stipulated statement of facts.
The dismissal was ordered prior to any declaration of
guilt or innocence and was based upon the failure of the
indictment to charge an offense. The Supreme Court
held that the Double Jeopardy Clause barred the
government’s appeal.United States v. Kopp, 429 U.S. 121, 97 S.Ct. 400, 50
L.Ed.2d 336 (1976). Initially, the trial court had denied
defendant’s motion to suppress and found defendant
guilty after a bench trial. The Supreme Court held that
the Double Jeopardy Clause did not bar the
government’s appeal when, post-verdict, the trial court
reversed its suppression ruling and dismissed the
indictment. See also United States v. Rose, 429 U.S. 5, 97
S.Ct. 26, 50 L.Ed.2d 5 (1976); United States v. Morrison,
429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976).United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013,
43 L.Ed.2d 232 (1975). “When a judge rules in favor of
a defendant after a verdict of guilty has been entered by
the trier of fact, the Government may appeal from that