<< Cell Phone Data Case Decided | Main | News Scan >>

Consent, Double Jeopardy, and Issue Preclusion

The Fifth Amendment protects against a second trial "for the same offence."  What happens when a defendant with two different but related charges requests two trials and the first ends in acquittal?  Can he block the second trial on the ground that an essential issue was resolved in his favor in the first one?  No, the U.S. Supreme Court said today in Currier v. Virginia, No.16-1348.  You can't complain when you get what you ask for.  Well, maybe you can, but it won't do you any good.

Along the way, Justice Gorsuch's opinion for the majority casts some doubt on Ashe v. Swenson (1970), the famous or notorious (depending on your point of view) case that read into the Constitution a rule against retrying an issue resolved in the defendant's favor in an earlier trial for a different but related offense.

"Ashe's suggestion that the relitigation of an issue can sometimes amount to the impermissible relitigation of an offense represented a significant innovation in our jurisprudence."  "Innovation" is not a compliment among those who believe that the Court's role is to apply and enforce the Constitution as written and as intended, not make it up as they go along.  "Some have argued that it sits uneasily with this Court's double jeopardy precedent and the Constitution's original meaning."  That means "wrong."

The Court is not ready to throw Ashe on the ash heap just yet, but stayed tuned.

Leave a comment

Monthly Archives