Argument preview: Revisiting the double jeopardy conundrum (Corrected)

Adhering to a household theft through which a secure made up of firearms was taken, Michael Currier was charged less than Virginia regulation with breaking and getting into, larceny, and possession of a firearm following a felony conviction. The felon-in-possession charge was dependent on the allegation that Currier experienced briefly possessed the guns in the secure when he participated in the crack-in. A Virginia court docket rule permits any felon-in-possession charge to be severed before trial with the settlement of the defendant. Pursuant to that rule, the state created a pretrial movement to sever the felon-in-possession charge, and Currier agreed.

Virginia tried using Currier initial on the breaking-and-getting into and larceny rates and he was acquitted. Immediately after his acquittal, he moved to bar the second trial on the floor that in acquitting him, the jury at the initial trial experienced fixed the query of no matter if he experienced participated in the theft in his favor. He argued that the collateral-estoppel ingredient of the double-jeopardy clause, as described in the seminal case of Ashe v.  Swenson, prohibited relitigation of that situation at a second trial. The collateral-estoppel doctrine – also recognized as situation preclusion — offers that when an situation of final simple fact is finally made the decision by an acquittal, relitigation of that situation is barred by the double-jeopardy clause. The trial court docket denied the movement and Currier was convicted of the felon-in-possession charge.

The Virginia Courtroom of Appeals affirmed the conviction. It held that the core problem of the double-jeopardy clause – the prevention of prosecutorial oppression and overreaching —  is “not present when a trial proceeds on a charge that was severed from a combined first team of rates with the defendant’s consent and for his advantage.” The Virginia Supreme Courtroom affirmed. In his petition for certiorari to the Supreme Courtroom, Currier requested the justices to decide no matter if a defendant who consents to individual trials waives his proper to the situation-preclusive outcome of an acquittal. The eight decreased courts that have tackled the waiver situation have split down the center on this situation.

Currier argues that the core security of the double-jeopardy clause guards versus retrial following an acquittal, the basis for the situation-preclusion line of instances, and that Ashe and its progeny would preclude striving him on the charge of possessing guns through a theft, since a jury has previously established that he did not just take part in the theft. He also argues that consenting to individual trials to avoid the crystal clear prejudice that would consequence from “joining rates that permit the prosecution to introduce proof of a prior conviction with rates that do not” does not quickly waive the situation-preclusive outcome of an acquittal. In an amicus brief in guidance of Currier, the Cato Institute would make the supplemental argument that failure to utilize the collateral-estoppel bar deprives the jury of its right democratic function of deciding the facts.

For its part, Virginia, supported by amicus briefs from the federal govt and 21 states, argues that Currier’s consent to sever the rates waived his proper to invoke the situation-preclusive outcome of his acquittal. The state also argues that Currier has unsuccessful to exhibit that the jury at his initial trial established an situation of final simple fact important to his second trial since the jury could have concluded that he did not participate in the actual crack-in but experienced been at the scene and handled the weapons.

The parties’ arguments in this case mirror the court’s uncertainty about the scope of the terse double-jeopardy security. Historically, the court docket has wavered concerning broad and narrow interpretations, reversing or overruling selections inside a limited interval of time. The collateral-estoppel ingredient has been specially demanding. In 1970, in Ashe, the Supreme Courtroom initial held that collateral estoppel bars a second trial following a jury has established an situation of final simple fact in the defendant’s favor. Ashe experienced been charged with robbing 6 poker players and was initially brought to trial on the charge of robbing one particular of them. At trial, it was crystal clear that the robbery experienced transpired and that home experienced been taken, but the state’s case was weak on no matter if Ashe was one particular of the robbers. The Supreme Courtroom dominated that the jury’s acquittal of Ashe for the robbery of one particular poker player barred a second trial for the robbery of yet another player in the very same video game, since the initial jury experienced established that Ashe was not one particular of the robbers. As precedent, Ashe has been criticized, dependent in part on its special facts and on what has occur to be seen as its superficial evaluation – an example of the thanks-approach incorporation instances from that era.

Until finally Yeager v. United States, in 2009, the court docket did not enterprise further than its holding in Ashe, reversing two times, in Turner v. Arkansas and Harris v. Washington, dependent on a narrow software of that precedent. In Yeager, the court docket held that when a jury returns a combined verdict acquitting a defendant of some rates and failing to concur on other rates, the simple fact of the hung jury does not interfere with the acquittal’s or else preclusive outcome. In that predicament, retrial on the mistried counts is prohibited. In a perception, then, the court docket modified program in Yeager and broadened the attain of the collateral-estoppel security. In its upcoming determination on this situation, nonetheless, final phrase in Bravo-Fernandez v. United States, the court docket refused to prolong Yeager to a combined-verdict case in which convictions on some counts have been vacated instead than mistried.

The court docket also has been inconsistent in construing the applications of the double-jeopardy security, no matter if in clarifying the scope of the “same offense” language in the Fifth Modification, outlining the prohibition versus multiple punishments, or defining an acquittal. Yeager is one particular example. To be sure, as the court docket below held and Virginia argues, and as the court docket by itself has recognized, one particular reason of the double-jeopardy clause is to safeguard versus govt oppression. Yet the Yeager court docket used collateral estoppel to bar a second trial even nevertheless the govt experienced not sought individual trials of distinct rates, but experienced brought all of the rates together. In Yeager, the absence of a tactical determination to test rates individually did not stop the software of collateral estoppel to bar the second trial. The court docket has expressed problem about the proliferation of obtainable statutory rates and the chance for and extent of govt overcharging. And, in Yeager and other instances, the court docket has continuously protected the finality of an acquittal no matter of no matter if the acquittal was erroneous or the consequence of any govt overreaching.

Against this backdrop, Currier argues that the proper to situation preclusion recognized in Ashe is unique from the proper versus successive prosecution, which may well arguably require govt oppression instead, situation preclusion focuses on one particular of the core double-jeopardy protections – preserving the integrity of an acquittal. In accordance to Currier, the court’s security of the finality of an acquittal, irrespective of any govt oppression, has been crystal clear. In determining no matter if a defendant is entitled to situation preclusion in a specified case, therefore, the query of no matter if the govt has acted oppressively is not significant. Virginia, on the other hand, asserts that the reason of the double-jeopardy security is to stop govt oppression and that no such oppression transpired in this article, in which the petitioner chose to have individual trials.

Whilst the scope of the collateral-estoppel security is undoubtedly a subject matter of dispute, the concentration of the oral argument is probable to be the waiver situation. Currier argues that his determination to sever the two sets of rates to avoid prejudice did not constitute a waiver of his double-jeopardy rights for two reasons. 1st, he maintains that consenting to individual trials to avoid prejudice does not waive the preclusive outcome of an acquittal since asserting the proper to a truthful trial is not inconsistent with asserting the proper to the preclusive outcome of an acquittal. He distinguishes the Supreme Court’s determination in Jeffers v. United States, in which the court docket held that a defendant’s movement to sever counts for trial waives the proper to item to individual trials of those counts, since in Jeffers, assertion of the security versus multiple trials was inconsistent with assertion of the proper to have individual trials. Second, he maintains that he was compelled to pick concerning two constitutional rights: his double-jeopardy security and his proper to a truthful trial. Virginia depends on Jeffers and the court’s govt-oppression precedent to argue that Currier’s consent demonstrates that there was no govt oppression justifying extension of the double-jeopardy security, and that Currier knowingly chose to undergo individual trials in exchange for an evidentiary advantage and has consequently waived any double-jeopardy rights.

This publish has been up to date to consist of two instances in which the Supreme Courtroom held that a second trial was barred by collateral estoppel.  

Posted in Currier v. Virginia, Showcased, Merits Situations, Corrections

Recommended Citation:
Lissa Griffin,
Argument preview: Revisiting the double jeopardy conundrum (Corrected),
SCOTUSblog (Feb. 13, 2018, 10:54 AM),
http://www.scotusblog.com/2018/02/argument-preview-revisiting-double-jeopardy-conundrum/

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