In Burks v. United States (1977), the U.S. Supreme Court ruled that the Double Jeopardy Clause of the Fifth Amendment prohibits a second trial once an appellate court has found evidence in a case to be insufficient for conviction. The case involved Herman Burks, who was convicted of robbing a federal bank but had his conviction overturned on appeal due to lack of sufficient evidence. However, instead of acquitting him, the appellate court ordered a new trial which led to another guilty verdict against him. Upon reaching the Supreme Court, it held that when an initial conviction is reversed because there wasn't enough evidence for any rational trier-of-fact could have declared guilt beyond reasonable doubt at first instance; then defendant cannot be retried again as this would amount double jeopardy.

In the dissenting opinion for Burks v. United States, Justice Rehnquist disagreed with the majority's decision to overturn a lower court ruling that had found Burks guilty of robbing a federal bank. He argued that there was sufficient evidence presented at trial to support the conviction and therefore, it should not be overturned on appeal due to insufficient evidence. Furthermore, he contended that the Double Jeopardy Clause does not prevent retrial when an appellate court finds evidentiary insufficiency in a case; rather it only applies when there is an acquittal or termination of proceedings in favor of the defendant during initial trial proceedings. Therefore, according to him, if errors were made by either party during trial regarding sufficiency of evidence they could be corrected through retrial without violating double jeopardy protections.