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SCOTUS: Second trial didn’t violate Double Jeopardy, preclusion

Rebecca M. Lightle//June 29, 2018

SCOTUS: Second trial didn’t violate Double Jeopardy, preclusion

Rebecca M. Lightle//June 29, 2018

A defendant who agrees to have the charges against him considered in two trials cannot later argue successfully that the second trial offends the Fifth Amendment.


This case began when police dredged up a safe full of guns from a Virginia river. Paul Garrison, the safe’s owner, had reported it stolen from his home. Police eventually found their way to Garrison’s nephew, who quickly confessed and named Petitioner Michael Currier as his accomplice. A grand jury indicted Currier for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon.

Currier and the government agreed to a severance whereby the trial court would try the burglary and larceny charges first and the felon-in-possession charge in a second trial. The trial court agreed, and the promised two trials followed. At the first, the jury acquitted. Currier then argued that a second trial would amount to double jeopardy. Alternatively and at the least, he asked the trial court to forbid the government from re-litigating in the second trial any issue resolved in his favor at the first. For example, he said, any evidence about the burglary and larceny should be excluded. The trial court disagreed, the second trial proceeded, and a jury convicted Currier on the felon-in-possession charge.

Both the Court of Appeals and Supreme Court of Virginia affirmed. Because courts have reached conflicting results on Currier’s arguments, this Court granted certiorari.

Double jeopardy

Ashe v. Swenson, 397 U. S. 436 (1970), forbids a second trial only if the prosecution, to secure a conviction, must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial. To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, the Court must be able to say that “it would have been irrational for the jury” in the first trial to acquit without finding in the defendant’s favor on a fact essential to a conviction in the second.

In contrast to Ashe, even assuming that Currier’s second trial qualified as the retrial of the same offense, he consented to it. Nor does anyone doubt that trying all three charges in one trial would have prevented any possible Ashe complaint he might have had.

As in Jeffers v. United States, 432 U. S. 137 (1977), where the defendant’s consent to two trials can overcome concerns lying at the historic core of the Double Jeopardy Clause, it must also overcome a double jeopardy complaint under Ashe.

Nor does anything in Jeffers suggest that the outcome should be different if the first trial yielded an acquittal rather than a conviction when a defendant consents to severance. While Ashe’s protections apply only to trials following acquittals, the Double Jeopardy Clause protects against a second prosecution for the same offense after conviction as well as against a second prosecution for the same offense after acquittal. Because the Clause applies equally in both situations, consent to a second trial should in general have equal effect in both situations.

Consenting to two trials when one would have avoided a double jeopardy problem precludes any constitutional violation associated with holding a second trial. In these circumstances, the defendant wins a potential benefit and experiences none of the prosecutorial “oppression” the Double Jeopardy Clause exists to prevent. Nor is there a good reason to treat Ashe double jeopardy complaints more favorably than traditional ones when a defendant consents to severance.

Currier contends that he had no real choice but to seek two trials. But the Constitution permitted Virginia to try all three charges at once with appropriate cautionary instructions. This simply isn’t a case where the defendant had to give up one constitutional right to secure another. Instead, Currier faced a lawful choice between two courses of action that each bore potential costs and rational benefits. It might have been a hard choice. But litigants every day face difficult decisions.


Currier argues that his consent to a second trial did not extend to the re-litigation of any issues the first jury resolved in his favor. Therefore, he says, the trial court should have excluded evidence suggesting he possessed the guns in Garrison’s home. But this Court recently held that issue preclusion principles should have only guarded application in criminal cases. And the Double Jeopardy Clause speaks about prohibiting the re-litigation of offenses, not issues or evidence. It’s difficult to ignore that only in the Seventh Amendment — and only for civil suits — can we find anything resembling contemporary issue preclusion doctrine.

Early courts regularly confronted cases just like this one and expressly rejected the notion that the Double Jeopardy Clause barred the re-litigation of issues or facts. While the Clause embodies a kind of “claim preclusion” rule, even this rule bears little in common with its civil counterpart. In civil cases, a claim generally may not be tried if it arises out of the same transaction or common nucleus of operative facts as another already tried. But the text of the Double Jeopardy Clause, which bars a prosecution for the same offense, is inconsistent with an issue preclusion rule that purports to bar a second prosecution involving … a different offense.

What would happen if this Court unilaterally increased the costs associated with severance in the form of allowing issue preclusion for defendants only? Granting a severance is no small thing. It would be a mistake to ignore the possibility that by making severances more costly we might wind up making them rarer too.

The fact is, civil preclusion principles and double jeopardy are different doctrines, with different histories, serving different purposes. The Double Jeopardy Clause and the common law principles it built upon govern criminal cases and concern more than efficiency. They aim instead to balance vital interests against abusive prosecutorial practices with consideration to the public’s safety. The Clause’s terms and history simply do not contain the rights Currier seeks.

The judgment of the Virginia Supreme Court is affirmed.


(Kennedy, J.) The Double Jeopardy Clause reflects the principle that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. But this principle does not include situations in which the defendant is responsible for the second prosecution.

The extent of the Double Jeopardy Clause protections discussed and defined in Ashe need not be reexamined here. Whatever the proper formulation and implementation of those rights are, they can be lost when a defendant agrees to a second prosecution.


(Ginsburg, J.) Under Virginia practice, unless the prosecutor and the defendant otherwise agree, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction. Virginia maintains this practice recognizing that evidence of a prior criminal conviction, other than on the offense for which the defendant is being tried, can be highly prejudicial in jury trials.

I would hold that Currier’s acquiescence in severance of the felon-in-possession charge does not prevent him from raising a plea of issue preclusion based on the jury acquittals of breaking and entering and grand larceny.

The first trial established that Currier did not participate in breaking and entering the Garrisons’ residence or in stealing their safe. The government can attempt to prove Currier possessed firearms through a means other than breaking and entering the Garrisons’ residence and stealing their safe. But the government should not be permitted to show in the felon-in-possession trial what it failed to show in the first trial, i.e. Currier’s participation in the charged breaking and entering and grand larceny, after a full and fair opportunity to do so.

I would reverse the judgment of the Virginia Supreme Court.

Currier v. Virginia, Case No. 16-1348, June 22, 2018. S. Ct. (Gorsuch), from SCV (per curiam). VLW No. 018-1-002, 36 pp.

VLW 018-1-002

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