¶1(concurring in part and dissenting in part, with whom Abrams, J., joins). Today the court addresses the constitutionality of an aspect of the optional two-tier system of criminal trials described in part in G. L. c. 218, § 26A, inserted by St. 1978, c. 478, § 188. Under this system, a defendant who chooses a bench trial and is convicted on insufficient evidence can be retried de nova to a jury, but he has no other avenue of relief. The majority conclude that this practice does not offend the double jeopardy clause of the Federal Constitution. I respectfully disagree.
¶2The double jeopardy clause creates a constitutional policy against multiple trials of a criminal defendant. See Green v. United States, 355 U.S. 184,187-188 (1957). If the prosecution received “one fair opportunity to offer whatever proof it could assemble,” but the proof was insufficient, retrial of the defendant would frustrate the purposes of the double jeopardy clause. Burks v. United States, 437 U.S. 1, 16 (1978). See Greene v. Massey, 437 U.S. 19 (1978).
¶3The majority declare that “double jeopardy protection is not applicable to a defendant who is convicted and seeks reversal of such conviction by resort to a second-tier trial.” Supra at 362. Burks, however, focused on the nature of the error committed at the first trial, not on acquittal or conviction. Thus, if the error is mere “trial error,” which “implies nothing with respect to the guilt or innocence of the defendant,” the defendant may be retried. Burks, supra at 15. If, on the other hand, the government failed to prove its case, retrial is impermissible. Id. at 16. The evil at stake is that a defendant against whom the prosecution *369has not been able to muster even a prima facie case must endure a second trial.
¶4The majority impose a precondition for attachment of the defendants’ double jeopardy rights; an appellate determination that the evidence was insufficient to convict him.
¶5The double jeopardy clause requires the prosecution to prove its case in one trial. If the prosecution’s evidence was so weak that no reasonable trier of fact could conclude that the defendants were guilty beyond a reasonable doubt, this principle applies with special force. The majority choose to ignore this logic. They would put the defendants here through the “embarrassment, expense and ordeal” of a second trial, and would consign them for a second time to “a continuing state of anxiety and insecurity.” Greenv. United States, supra at 187. They refuse to recognize that the double jeopardy clause safeguards against just such mistreatment at the hands of the criminal justice system. After today, the enforceability of the Burksright will depend largely upon the sufferance of the Legislature. If the Legis*370lature chooses to provide a criminal defendant with no avenue of relief other than a second trial, the defendant’s constitutional right must languish among shadows.
¶6The majority opinion states: “We think that no double jeopardy is involved . . . when a criminal defendant voluntarily elects to accept the consequences of a procedure such as the optional two-tier system now in effect in the Commonwealth.” Supra at 365. The majority point out that the defendants, not the Commonwealth, sought a trial de nova and that the Commonwealth simply provided the defendants with no other right to review of the bench trial.
¶7The majority seem to treat a defendant’s “voluntary” choice of a bench trial and subsequent “choice” of a trial de nova as a waiver of his double jeopardy rights.
¶8The majority do not suggest that the present two-tier system makes provision for explicit waiver of the right to avoid a second trial after a bench trial conviction on insufficient evidence. Nor does such a waiver appear affirmatively in the report or the record. See Ciummei v. Commonwealth, 378 Mass. 504 (1979). Therefore, I would answer the first reported question in the affirmative.
¶9On the second question, as if to carry their sophistical exercise a step further, the majority assert that the defendants, in a case such as this one, can raise their double jeopardy claims before the jury-trial judge. But what can be the purpose of this review? According to the majority, the defendants have no double jeopardy claim. Thus, for defendants such as Michael Lydon and Robert McDonald, the procedure before the jury-trial judge can only be charade in which the defendants’ motion to dismiss inevitably will be denied. Perhaps the real purpose of this review is to give the jury-trial judge a chance to rule on the sufficiency of the evidence and thus to nullify the inexplicable result reached today.
¶10Because I would answer the first reported question in the affirmative, I concur with the majority’s answer to the second question. The jury trial session is the proper forum for a defendant to raise a double jeopardy claim arising at his bench trial.
¶11 Our previous two-tier system survived a general double jeopardy challenge. Ludwig v. Massachusetts, 427 U.S. 618 (1976). A system somewhat similar to our present one withstood a general challenge in Colten v. Kentucky, 407 U.S. 104 (1972). However, neither decision addressed the situation in which evidence at the first trial was insufficient. See Gibson v. Commonwealth, supra.Both Ludwigand Coltenwere decided, moreover, prior to Burks, in which the Court first drew a clear distinction between failure of proof and mere trial error, thus overruling a number of earlier cases dealing with double jeopardy claims.
¶12The majority cite United States v. Scott, 437 U.S. 82, 88-89 (1978), in support of their distinction. Supra at 362. Scottinvolved an appeal by the government. But, in summary, that discussion merely states: “The successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, . . . poses no bar to further prosecution on the same charge.” Id. at 90-91. For a defendant convicted at a first trial, the Scottopinion does not abrogate the distinction between evidentiary insufficiency and trial error. Indeed, the careful distinctions drawn in Scottas to dismissal of an indictment for reasons other than failure of proof support my view. “ In the present case, the District Court’s dismissal of the first count of the indictment [after the close of all of the evidence] was based upon a claim of preindictment delay and not on the court’s conclusion that the Government had not produced sufficient evidence to establish the guilt of the defendant.” Id. at 95.
¶13“We conclude that the defendants’ voluntary choice of a bench trial and subsequent choice of a trial de nova create a situation in which double jeopardy is not implicated.” Supra at 359-360. “[Djouble jeopardy protection is not applicable to a defendant who is convicted and seeks reversal of such conviction by resort to a second-tier trial.” Supra at 362. Such language disregards the clear language of Burksto the contrary: “In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy.” Burks v. United States, 437 U.S. 1, 17 (1978).
¶14 The majority point out that a defendant who chooses a bench trial may obtain tactical and other advantages. Supra at 365. However, a defendant’s choice is not meaningful, in constitutional terms, unless he also understands that he is giving up his constitutional right. Johnson v. Zerbst, 304 U.S. 458 (1938).
¶15 The majority do not state that this review is available for all double jeopardy claims arising from the bench trial, or for claims unlike Lydon’s and McDonald’s.