In the United States v. Wilson case of 1974, the U.S. Supreme Court ruled that a defendant must file a motion to dismiss before trial in order to claim immunity from prosecution under the Double Jeopardy Clause of the Fifth Amendment. The case involved Robert L. Wilson who was convicted for bank robbery and sentenced to imprisonment by a federal district court but later appealed his conviction on grounds that he had been placed in double jeopardy because an earlier mistrial had been declared without his consent after jury members were unable to reach a verdict. However, since Wilson did not raise this issue prior to or during his second trial, it was deemed waived according to Rule 12(b)(2) of Federal Rules of Criminal Procedure which requires such defenses be raised pre-trial.

In the dissenting opinion for United States v. Wilson, Justice Marshall argued that the majority's decision to allow defendants to waive their right to appeal based on non-assertion of rights during trial was a departure from established legal principles. He contended that this ruling would place an undue burden on defendants who may not fully understand or be aware of their rights and potential grounds for appeal at every stage in a complex criminal proceeding. Furthermore, he expressed concern about the implications of such a rule for judicial efficiency and fairness, as it could lead to more frequent retrials if errors were discovered after conviction but had not been raised during trial due to lack of awareness or strategic considerations by defense counsel. Finally, he disagreed with the majority's interpretation of Rule 52(b) as requiring intentional relinquishment or abandonment of known rights rather than mere failure to assert them.