Can't Have Your Cake and Eat It Too.

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The Takeaway — A defendant’s consent to multiple trials waives all double jeopardy objections to the later proceedings.  

Four justices wanted to go further and get rid of the Double Jeopardy Clause’s issue preclusion doctrine, but Justice Kennedy, who was in the majority, declined to go that far.  
For an interesting read on the different rights and interests protected by the Double Jeopardy Clause, take a look a Justice Ginsburg’s cogent dissent.

As for the Court’s actual opinion . . . .

(Taken from the syllabus prepared by the Reporter of Decisions)


Currier v. Virginia

Argued February 20, 2018

Decided June 22, 2018

GORSUCH, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Part III, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined. KENNEDY, J., filed an opinion concurring in part.  GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Petitioner Michael Currier was indicted for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. Because the prosecution could introduce evidence of Mr. Currier’s prior burglary and larceny convictions to prove the felon-in-possession charge, and worried that evidence might prejudice the jury’s consideration of the other charges, Mr. Currier and the government agreed to a severance and asked the court to try the burglary and larceny charges first, followed by a second trial on the felon-in-possession charge. At the first trial, Mr. Currier was acquitted. He then sought to stop the second trial, arguing that it would amount to double jeopardy. Alternatively, he asked the court to prohibit the state from relitigating at the second trial any issue resolved in his favor at the first. The trial court denied his requests and allowed the second trial to proceed unfettered. The jury convicted him on the felon-in-possession charge. The Virginia Court of Appeals rejected his double jeopardy arguments, and the Virginia Supreme Court summarily affirmed.

Held: A defendant’s consent to multiple trials waives all double jeopardy objections to the subsequent proceedings.

The majority concluded that, because Mr. Currier consented to a severance, his trial and conviction on the felon-in-possession charge did not violate the Double Jeopardy Clause.  That clause provides that no person may be tried more than once “for the same offence.” Mr. Currier argued that Ashe v. Swenson, 397 U.S. 436, required a ruling for him.  In Ashe, the Court held that the Double Jeopardy Clause barred a defendant’s prosecution for robbing a poker player because the defendant’s acquittal in a previous trial for robbing a different poker player from the same game established that the defendant was not one of the robbers. According to the majority, Ashe’s suggestion that the relitigation of an issue may amount to the impermissible relitigation of an offense represented a significant innovation in the Court’s jurisprudence. But the Court emphasized that Ashe’s test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial. A second trial is not precluded simply because it is unlikely—or even very unlikely—that the original jury acquitted without finding the fact in question. 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.

The majority stated, however, that there is a critical difference between Currier’s case and Ashe: Even if Mr. Currier’s second trial qualified as the retrial of the same offense under Ashe, he consented to the second trial. Mr. Currier contended that he had no choice but to seek two trials because evidence of his prior convictions would have tainted the jury’s consideration of the burglary and larceny charges. But the majority rejected that argument, stating that Mr. Currier faced a lawful choice between two courses of action that each bore potential costs and rationally attractive benefits. Difficult strategic choices are not the same as no choice, and the Constitution does not forbid requiring a litigant to make them.

To this extent, Justice Kennedy joined the opinion of the court.

But a four-justice plurality went further, rejecting Currier’s argument that even if he consented to multiple proceedings, he did not waive his claim that the state was barred from producing evidence of his involvement in the crime for which he has been acquitted.  Relying on the clause’s “same offence” text, history, and precedent, the plurality questioned whether issue preclusion following an acquittal is even protected by the Double Jeopardy Clause.  However, because Justice Kennedy did not join in the plurality’s decision to further limit Ashe, this part of the opinion does not constitute binding precedent.

The decision can be found here:

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