Byron White

“ Even if a man under the Constitution may properly and lawfully be put on trial again, if he has been tried once, even though it were a mistrial, if he had been for a moment in jeopardy, he insists that we shall provide by law, no matter what the case may be, that he shall not be tried again ”

“ The question in this case should simply be whether or not a judge who upholds a claim of constitutional privilege, thereby declaring the statute unconstitutional as applied, has entered a judgment that Congress intended this Court to be able to review. Surely in a statute as unclear and ambiguous as the majority says this unhappy Act is, the 'words' of the statute are only the first place to start the task of interpretation. The primary guide to interpretation should be the statute's purpose, as indicated by the evil that prompted it, and by the legislative history. ”

“ For even where a judge dismisses an indictment or grants a motion in arrest because of defects 'on the face of the record,' it is always true that he might have sent the case to the jury, instructing it to acquit if it found the facts alleged in the indictment, thus insulating the case from review because of the intervening jury acquittal.↑ One will search the majority's opinion in vain for an explanation as to why 'motion in arrest' must be pinned to its common-law meaning, while 'motion in bar'-which the majority also concedes had a unique meaning at common law, see ante, at 300 n. ”

“ Even where references occur to the impaneling of the jury as the moment when jeopardy attaches, it is clear that jeopardy is still being used in its legal sense-after all, as the majority itself notes, ante, at 305, the impaneling of the jury does in fact often become the constitutionally relevant point in determining that 'legal jeopardy' has attached to prevent a reprosecution. ”

“ Senator Patterson's remarks are particularly interesting because, apart from whether he is right on the question of constitutional jeopardy, he makes clear the distinction between a motion in bar and an acquittal which the majority blithely ignores:
'A special plea in bar * * * is a plea that does not relate to the guilt or innocence of the defendant in the sense as to whether he did or not commit the act for which he was indicted. A special plea in bar is that which is set up as a special defense notwithstanding the defendant may be guilty of the offenses with which he is charged ”

“ Senator Rayner's hypothetical example of a plea in bar sustained after trial had begun-an example accepted without question by Senators Patterson, Nelson, and Spooner, and every other Senator participating in the debate completely undercuts the majority's assertion that Congress thought there could be no appeal once the jury had been impaneled. ”

“ In both cases, any 'factual findings' necessary to give the particular defendant the benefit of the constitutional ruling are little more than findings as to the defendant's standing to raise the constitutional issue-they are not findings as to the sufficiency of the evidence to prove the offense alleged in the indictment. ”

“ It is their function to determine what is jeopardy. It is their function to protect the citizens of the United States against any invasion of the constitutional guaranty as to double jeopardy. I think we can rely upon the court to protect as far as the Constitution requires it all defendants, without supplementing the Constitution by the Senator's amendment to this bill.' 41 Cong.Rec. ”

“ When debate was resumed at the next session of Congress, Senator Spooner unmistakably indicated that jeopardy was being used in the constitutional, legal sense, in direct opposition to the views the majority now tries to ascribe to him:
'The question is whether it subjects a man under any aspect of it to the danger of double jeopardy. ”

“ Procedurally, the fact that the plea is sustained only after a jury verdict of conviction-and the fact that the judge labeled his action as something other than a 'motion in bar'-does not prevent finding a 'motion in bar.' United States v. ”

“ The actual quotation is that no appeal would lie 'where a jury has been impaneled and where the defendant has been tried * * *.' 41 Cong.Rec. 2191 (emphasis added) . In context, it is clear that Senator Nelson is venturing an interpretation of 'jeopardy' in the legal sense. The whole dispute at this point in the debate is primarily between Senator Rayner who opposed the bill, and Senators Bacon and Nelson, who supported the bill. The proponents were at pains to show that a person could not be 'put twice in jeopardy' under any of the provisions of the bill, 41 Cong.Rec. ”

“ The entire brief exchange occurred before the bill was debated, further consideration having immediately been postponed by the objection of other Senators to pursuing the matter at that time. See F. Frankfurter & J. Landis, The Business of the Supreme Court 117 n. 68 (1928) . ”