William J. Brennan, Jr.

“ The eyewitness had testified at the first trial that a man had entered her house "wearing a knitted mask with cutout eyes and carrying a small handgun" and that his mask had come off during a struggle, revealing his identity. ”

“ The Court's ruling today effectively renders our holding in Dowling a nullity in many circumstances. If a situation identical to that in Dowling arose after today's decision, a conscientious judge attempting to apply the test enunciated by the Court, ante, at 510, 521, would probably conclude that the witness' testimony was barred by the Double Jeopardy Clause. ”