736
Opinion of White, J.
majority, its eyes fixed on the rigid elements test, would have his fate turn on whether his subsequent prosecution charges "simple assault" or "assault with intent to kill." Yet, because the crime of "simple assault" is included within the crime of "assault with intent to kill," the reasons that bar retrial under the first hypothesis are equally present under the second: These include principles of finality, see United States v. Wilson, supra, at 343; protecting Foster from "embarrassment" and "expense," Green v. United States, 355 U. S., at 187; and preventing the Government from gradually fine-tuning its strategy, thereby minimizing exposure to a mistaken conviction, id., at 188. See also Tibbs v. Florida, 457 U. S. 31, 41 (1982); Arizona v. Washington, 434 U. S. 497, 503-504 (1978); supra, at 724.
Analysis of the threat charges (Counts II-IV) makes the point more clearly still. In the contempt proceeding, it will be recalled, Foster was acquitted of the—arguably lesser included—offense of threatening "in any manner." As we have stated:
"[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal might have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent he may be found guilty.' " United States v. Scott, 437 U. S. 82, 91 (1978) (citation omitted).
To allow the Government to proceed on the threat counts would present precisely the risk of erroneous conviction the Clause seeks to avoid. That the prosecution had to establish the existence of the CPO in the first trial, in short, does not in any way modify the prejudice potentially caused to a defendant by consecutive trials.
To respond, as the majority appears to do, that concerns relating to the defendant's interests against repeat trials are
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