Currier v. Virginia , 138 S. Ct. 2144 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CURRIER v. VIRGINIA
CERTIORARI TO THE SUPREME COURT OF VIRGINIA
No. 16–1348. Argued February 20, 2018—Decided June 22, 2018
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 bur-
glary 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 sev-
erance 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. Alter-
natively, 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 un-
fettered. The jury convicted him on the felon-in-possession charge.
The Virginia Court of Appeals rejected his double jeopardy argu-
ments, and the Virginia Supreme Court summarily affirmed.
Held: The judgment is affirmed.
292 Va. 737, 798 S.E.2d 164, affirmed.
JUSTICE GORSUCH delivered the opinion of the Court with respect to
Parts I and II, concluding 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, which provides that no
person may be tried more than once “for the same offence.” Mr. Cur-
rier argues that Ashe v. Swenson, 397 U.S. 436, requires a ruling for
him. There, the Court held that the Double Jeopardy Clause barred
a defendant’s prosecution for robbing a poker player because the de-
fendant’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,” id., at 446. Ashe’s suggestion that the relitigation
2 CURRIER v. VIRGINIA
Syllabus
of an issue may amount to the impermissible relitigation of an of-
fense represented a significant innovation in this Court’s jurispru-
dence. But whatever else may be said about Ashe, the Court has em-
phasized that its 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 sec-
ond.
Bearing all that in mind, a critical difference emerges between this
case and Ashe: Even assuming that Mr. Currier’s second trial quali-
fied as the retrial of the same offense under Ashe, he consented to the
second trial. In Jeffers v. United States, 432 U.S. 137, where the
issue was a trial on a greater offense after acquittal on a lesser-
included offense, the Court held that the Double Jeopardy Clause is
not violated when the defendant “elects to have the . . . offenses tried
separately and persuades the trial court to honor his election.” Id., at
152. If consent can overcome a traditional double jeopardy complaint
about a second trial for a greater offense, it must also suffice to over-
come a double jeopardy complaint under Ashe’s more innovative ap-
proach. Holding otherwise would be inconsistent not only with Jef-
fers but with other cases too. See, e.g., United States v. Dinitz, 424
U.S. 600. And cases Mr. Currier cites for support, e.g., Harris v.
Washington, 404 U.S. 55, merely applied Ashe’s test and concluded
that a second trial was impermissible. They do not address the ques-
tion whether the Double Jeopardy Clause prevents a second trial
when the defendant consents to it.
Mr. Currier contends 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. This is not a
case, however, where the defendant had to give up one constitutional
right to secure another. Instead, Mr. Currier faced a lawful choice
between two courses of action that each bore potential costs and ra-
tionally attractive benefits. Difficult strategic choices are “not the
same as no choice,” United States v. Martinez-Salazar, 528 U.S. 304,
315, and the Constitution “does not . . . forbid requiring” a litigant to
make them, McGautha v. California, 402 U.S. 183, 213. Pp. 3–8.
JUSTICE GORSUCH, joined by THE CHIEF JUSTICE, JUSTICE THOM-
AS, and JUSTICE ALITO, concluded in Part III that civil issue preclu-
Cite as: 585 U. S. ____ (2018) 3
Syllabus
sion principles cannot be imported into the criminal law through the
Double Jeopardy Clause to prevent parties from retrying any issue or
introducing any evidence about a previously tried issue. Mr. Currier
argues that, even if he consented to a second trial, that consent did
not extend to the relitigation of any issues the first jury resolved in
his favor. Even assuming for argument’s sake that Mr. Currier’s con-
sent to holding a second trial didn’t more broadly imply consent to
the manner it was conducted, his argument must be rejected on a
narrower ground as refuted by the text and history of the Double
Jeopardy Clause and by this Court’s contemporary double jeopardy
cases, e.g., Blockburger v. United States, 284 U.S. 299; Dowling v.
United States, 493 U.S. 342. Nor is it even clear that civil preclusion
principles would help defendants like Mr. Currier. See, e.g., Bravo-
Fernandez v. United States, 580 U.S. ___, ___. Grafting civil preclu-
sion principles onto the criminal law could also invite ironies—e.g.,
making severances more costly might make them less freely availa-
ble. Pp. 8–16.
JUSTICE KENNEDY concluded that, because Parts I and II of the
Court’s opinion resolve this case in a full and proper way, the extent
of the Double Jeopardy Clause protections discussed and defined in
Ashe need not be reexamined here. Pp. 1–2.
GORSUCH, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I and II, in which ROB-
ERTS, 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, SO-
TOMAYOR, and KAGAN, JJ., joined.
Cite as: 585 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1348
_________________
MICHAEL NELSON CURRIER, PETITIONER v.
VIRGINIA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
VIRGINIA
[June 22, 2018]
JUSTICE GORSUCH announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I and II, and an opinion with respect to Part III, in
which THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE
ALITO join.
About to face trial, Michael Currier worried the prosecu-
tion would introduce prejudicial but probative evidence
against him on one count that could infect the jury’s delib-
erations on others. To address the problem, he agreed to
sever the charges and hold two trials instead of one. But
after the first trial finished, Mr. Currier turned around
and argued that proceeding with the second would violate
his right against double jeopardy. All of which raises the
question: can a defendant who agrees to have the charges
against him considered in two trials later successfully
argue that the second trial offends the Fifth Amendment’s
Double Jeopardy Clause?
I
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. Before the
2 CURRIER v. VIRGINIA
Opinion of the Court
theft, Mr. Garrison said, it contained not just the guns but
also $71,000 in cash. Now, most of the money was miss-
ing. As the investigation unfolded, the police eventually
found their way to Mr. Garrison’s nephew. Once confronted,
the nephew quickly confessed. Along the way, he
pointed to Michael Currier as his accomplice. A neighbor
also reported that she saw Mr. Currier leave the Garrison
home around the time of the crime. On the strength of
this evidence, a grand jury indicted Mr. Currier for bur-
glary, grand larceny, and unlawful possession of a firearm
by a convicted felon. The last charge followed in light of
Mr. Currier’s previous convictions for (as it happens)
burglary and larceny.
Because the prosecution could introduce evidence of his
prior convictions to prove the felon-in-possession charge,
and worried that the evidence might prejudice the jury’s
consideration of the other charges, Mr. Currier and the
government agreed to a severance. They asked the court
to try the burglary and larceny charges first. Then, they
said, the felon-in-possession charge could follow in a sec-
ond trial. Some jurisdictions routinely refuse requests like
this. Instead, they seek to address the risk of prejudice
with an instruction directing the jury to consider the
defendant’s prior convictions only when assessing the
felon-in-possession charge. See Brief for Indiana et al. as
Amici Curiae 10. Other jurisdictions allow parties to
stipulate to the defendant’s past convictions so the partic-
ulars of those crimes don’t reach the jury’s ears. Ibid.
Others take a more protective approach yet and view
severance requests with favor. Id., at 11–12; see, e.g.,
Hackney v. Commonwealth, 28 Va. App. 288, 294–296, 504
S.E.2d 385, 389 (1998) (en banc). Because Virginia falls
into this last group, the trial court granted the parties’
joint request in this case.
The promised two trials followed. At the first, the pros-
ecution produced the nephew and the neighbor who testi-
Cite as: 585 U. S. ____ (2018) 3
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fied to Mr. Currier’s involvement in the burglary and
larceny. But Mr. Currier argued that the nephew lied and
the neighbor was unreliable and, in the end, the jury
acquitted. Then, before the second trial on the firearm
charge could follow, Mr. Currier sought to stop it. Now, he
argued, holding a second trial would amount to double
jeopardy. Alternatively and at the least, he asked the
court to forbid the government from relitigating in the
second trial any issue resolved in his favor at the first. So,
for example, he said the court should exclude from the new
proceeding any evidence about the burglary and larceny.
The court replied that it could find nothing in the Double
Jeopardy Clause requiring either result so it allowed the
second trial to proceed unfettered. In the end, the jury
convicted Mr. Currier on the felon-in-possession charge.
Before the Virginia Court of Appeals, Mr. Currier re-
peated his double jeopardy arguments without success.
The court held that the “concern that lies at the core” of
the Double Jeopardy Clause—namely, “the avoidance of
prosecutorial oppression and overreaching through succes-
sive trials”—had no application here because the charges
were severed for Mr. Currier’s benefit and at his behest.
Currier v. Commonwealth, 65 Va. App. 605, 609–613, 779
S.E.2d 834, 836–837 (2015). The Virginia Supreme
Court summarily affirmed. Because courts have reached
conflicting results on the double jeopardy arguments Mr.
Currier pressed in this case, we granted certiorari to
resolve them. 583 U. S. ___ (2017).
II
The Double Jeopardy Clause, applied to the States
through the Fourteenth Amendment, provides that no
person may be tried more than once “for the same offence.”
This guarantee recognizes the vast power of the sovereign,
the ordeal of a criminal trial, and the injustice our crimi-
nal justice system would invite if prosecutors could treat
4 CURRIER v. VIRGINIA
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trials as dress rehearsals until they secure the convictions
they seek. See Green v. United States, 355 U.S. 187, 188
(1957). At the same time, this Court has said, the Clause
was not written or originally understood to pose “an insu-
perable obstacle to the administration of justice” in cases
where “there is no semblance of [these] type[s] of oppres-
sive practices.” Wade v. Hunter, 336 U.S. 684, 688–689
(1949).
On which side of the line does our case fall? Mr. Currier
suggests this Court’s decision in Ashe v. Swenson, 397
U.S. 436 (1970), requires a ruling for him. There, the
government accused a defendant of robbing six poker
players in a game at a private home. At the first trial, the
jury acquitted the defendant of robbing one victim. Then
the State sought to try the defendant for robbing a second
victim. This Court held the second prosecution violated
the Double Jeopardy Clause. Id., at 446. To be sure, the
Clause speaks of barring successive trials for the same
offense. And, to be sure, the State sought to try the de-
fendant for a different robbery. But, the Court reasoned,
because the first jury necessarily found that the defendant
“was not one of the robbers,” a second jury could not “ra-
tionally” convict the defendant of robbing the second vic-
tim without calling into question the earlier acquittal. Id.,
at 445–446. In these circumstances, the Court indicated,
any relitigation of the issue whether the defendant parti-
cipated as “one of the robbers” would be tantamount to the
forbidden relitigation of the same offense resolved at the
first trial. Id., at 445; see Yeager v. United States, 557
U.S. 110, 119–120 (2009).
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 juris-
prudence. Some have argued that it sits uneasily with
this Court’s double jeopardy precedent and the Constitu-
tion’s original meaning. See, e.g., Ashe, supra, at 460–461
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Opinion of the Court
(Burger, C. J., dissenting); Yeager, supra, at 127–128
(Scalia, J., dissenting). But whatever else may be said
about Ashe, we have emphasized that its test is a demand-
ing 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. See Yeager, supra, at 119–120; id., at 127
(KENNEDY, J., concurring in part and concurring in judg-
ment); id., at 133–134 (ALITO, J., dissenting). A second
trial “is not precluded simply because it is unlikely—or
even very unlikely—that the original jury acquitted with-
out finding the fact in question.” Ibid. 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, we 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. Id., at 127 (opinion of KENNEDY,
J.) (internal quotation marks omitted).
Bearing all that in mind, a critical difference immediately
emerges between our case and Ashe. Even assuming
without deciding that Mr. Currier’s second trial qualified
as the retrial of the same offense under Ashe, he consented
to it. Nor does anyone doubt that trying all three charges
in one trial would have prevented any possible Ashe com-
plaint Mr. Currier might have had.
How do these features affect the double jeopardy calcu-
lus? A precedent points the way. In Jeffers v. United
States, 432 U.S. 137 (1977), the defendant sought sepa-
rate trials on each of the counts against him to reduce the
possibility of prejudice. The court granted his request.
After the jury convicted the defendant in the first trial of a
lesser-included offense, he argued that the prosecution
could not later try him for a greater offense. In any other
circumstance the defendant likely would have had a good
argument. Historically, courts have treated greater and
6 CURRIER v. VIRGINIA
Opinion of the Court
lesser-included offenses as the same offense for double
jeopardy purposes, so a conviction on one normally pre-
cludes a later trial on the other. Id., at 150–151 (plurality
opinion); Brown v. Ohio, 432 U.S. 161, 168–169 (1977)
(collecting authorities). But, Jeffers concluded, it’s differ-
ent when the defendant consents to two trials where one
could have done. If a single trial on multiple charges
would suffice to avoid a double jeopardy complaint, “there
is no violation of the Double Jeopardy Clause when [the
defendant] elects to have the . . . offenses tried separately
and persuades the trial court to honor his election.” 432
U. S., at 152.
What was true in Jeffers, we hold, can be no less true
here. If a defendant’s consent to two trials can overcome
concerns lying at the historic core of the Double Jeopardy
Clause, so too we think it must overcome a double jeop-
ardy 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 we acknowledge
that Ashe’s protections apply only to trials following ac-
quittals, as a general rule, the Double Jeopardy Clause
“ ‘protects against a second prosecution for the same of-
fense after conviction’ ” as well as “ ‘against a second prose-
cution for the same offense after acquittal.’ ” Brown, su­
pra, at 165. Because the Clause applies equally in both
situations, consent to a second trial should in general have
equal effect in both situations.
Holding otherwise would introduce an unwarranted
inconsistency not just with Jeffers but with other prece-
dents too. In United States v. Dinitz, 424 U.S. 600 (1976),
for example, this Court held that a defendant’s mistrial
motion implicitly invited a second trial and was enough to
foreclose any double jeopardy complaint about it. In
reaching this holding, the Court expressly rejected “the
contention that the permissibility of a retrial depends on a
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
knowing, voluntary, and intelligent waiver” from the
defendant. Id., at 609 n. 11. Instead, it explained, none of
the “prosecutorial or judicial overreaching” forbidden by
the Constitution can be found when a second trial follows
thanks to the defendant’s motion. Id. at 607. In United
States v. Scott, 437 U.S. 82 (1978), this Court likewise
held that a defendant’s motion effectively invited a retrial
of the same offense, and “the Double Jeopardy Clause,
which guards against Government oppression, does not
relieve a defendant from the consequences of [a] voluntary
choice” like that. Id., at 96, 99; see also Evans v. Michi­
gan, 568 U.S. 313, 326 (2013) (“[R]etrial is generally
allowed [when] the defendant consents to a disposition
that contemplates reprosecution”). While relinquishing
objections sometimes turns on state or federal procedural
rules, these precedents teach that 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, our cases
hold, the defendant wins a potential benefit and experi-
ences none of the prosecutorial “oppression” the Double
Jeopardy Clause exists to prevent. Nor, again, can we
discern a good reason to treat Ashe double jeopardy com-
plaints more favorably than traditional ones when a de-
fendant consents to severance.
Against these precedents, Mr. Currier asks us to consider
others, especially Harris v. Washington, 404 U.S. 55(1971) (per curiam) and Turner v. Arkansas, 407 U.S. 366(1972) (per curiam). But these cases merely applied Ashe’s
test and concluded that a second trial was impermissible.
They did not address the question whether double jeop-
ardy protections apply if the defendant consents to a sec-
ond trial. Meanwhile, as we’ve seen, Jeffers, Dinitz, and
Scott focus on that question directly and make clear that a
defendant’s consent dispels any specter of double jeopardy
abuse that holding two trials might otherwise present.
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ORSUCH, J.
This Court’s teachings are consistent and plain: the
“Clause, which guards against Government oppression,
does not relieve a defendant from the consequences of his
voluntary choice.” Scott, supra, at 99.
Mr. Currier replies that he had no real choice but to
seek two trials. Without a second trial, he says, evidence
of his prior convictions would have tainted the jury’s con-
sideration of the burglary and larceny charges. And, he
notes, Virginia law guarantees a severance in cases like
his unless the defendant and prosecution agree to a single
trial. But no one disputes that the Constitution permitted
Virginia to try all three charges at once with appropriate
cautionary instructions. So this simply isn’t a case where
the defendant had to give up one constitutional right to
secure another. Instead, Mr. Currier faced a lawful choice
between two courses of action that each bore potential
costs and rationally attractive benefits. It might have
been a hard choice. But litigants every day face difficult
decisions. Whether it’s the defendant who finds himself in
the shoes of Jeffers, Dinitz, and Scott and forced to choose
between allowing an imperfect trial to proceed or seeking
a second that promises its own risks. Or whether it’s the
defendant who must decide between exercising his right to
testify in his own defense or keeping impeachment evi-
dence of past bad acts from the jury. See, e.g., Brown v.
United States, 356 U.S. 148, 154–157 (1958). This Court
has held repeatedly that difficult strategic choices like
these are “not the same as no choice,” United States v.
Martinez-Salazar, 528 U.S. 304, 315 (2000), and the
Constitution “does not . . . forbid requiring” a litigant to
make them, McGautha v. California, 402 U.S. 183, 213
(1971).
III
Even if he voluntarily consented to holding the second
trial, Mr. Currier argues, that consent did not extend to
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ORSUCH, J.
the relitigation of any issues the first jury resolved in his
favor. So, Mr. Currier says, the court should have excluded
evidence suggesting he possessed the guns in Mr. Gar-
rison’s home, leaving the prosecution to prove that he
possessed them only later, maybe down by the river. To
support this argument, Mr. Currier points to issue preclu-
sion principles in civil cases and invites us to import them
for the first time into the criminal law through the Double
Jeopardy Clause. In his view, the Clause should do much
more than bar the retrial of the same offense (or crimes
tantamount to the same offense under Ashe); it should be
read now to prevent the parties from retrying any issue or
introducing any evidence about a previously tried issue.
While the dissent today agrees with us that the trial court
committed no double jeopardy violation in holding the
second trial, on this alternative argument it sides with Mr.
Currier. See post, at 11, 12, 14–15.
We cannot. Even assuming for argument’s sake that
Mr. Currier’s consent to holding a second trial didn’t more
broadly imply consent to the manner it was conducted, we
must reject his argument on a narrower ground. Just last
Term this Court warned that issue preclusion principles
should have only “guarded application . . . in criminal
cases.” Bravo-Fernandez v. United States, 580 U.S. ___,
___ (2016) (slip op. at 4). We think that caution remains
sound.
Mr. Currier’s problems begin with the text of the Double
Jeopardy Clause. As we’ve seen, the Clause speaks not
about prohibiting the relitigation of issues or evidence but
offenses. Contrast this with the language of the Reexami-
nation Clause. There, the Seventh Amendment says that
“[i]n Suits at common law . . . no fact tried by a jury, shall
be otherwise re-examined in any Court of the United
States, than according to the rules of the common law.”
(Emphasis added.) Words in one provision are, of course,
often understood “by comparing them with other words
10 CURRIER v. VIRGINIA
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ORSUCH, J.
and sentences in the same instrument.” 1 J. Story, Com-
mentaries on the Constitution of the United States §400,
p. 384 (1833). So 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.
What problems the text suggests, the original public
understanding of the Fifth Amendment confirms. The
Double Jeopardy Clause took its cue from English common
law pleas that prevented courts from retrying a criminal
defendant previously acquitted or convicted of the crime in
question. See Scott, 437 U. S., at 87; 4 W. Blackstone,
Commentaries on the Laws of England 329–330 (1769).
But those pleas barred only repeated “prosecution for the
same identical act and crime,” not the retrial of particular
issues or evidence. Id., at 330 (emphasis added). As Sir
Matthew Hale explained:
“If A. commit a burglary . . . and likewise at the same
time steal goods out of the house, if he be indicted of
larciny for the goods and acquitted, yet he may be in-
dicted for the burglary notwithstanding the acquittal.
And è converso, if indicted for the burglary and acquit-
ted, yet he may be indicted of the larciny, for they are
several offenses, tho committed at the same time.” 2
M. Hale, The History of the Pleas of the Crown, ch.
31, pp. 245–246 (1736 ed.).
Both English and early American cases illustrate the
point. In Turner’s Case, 30 Kel. J. 30, 84 Eng. Rep. 1068
(K. B. 1663), for example, a jury acquitted the defendant of
breaking into a home and stealing money from the owner.
Even so, the court held that the defendant could be tried
later for the theft of money “stolen at the same time” from
the owner’s servant. Ibid. In Commonwealth v. Roby, 12
Pickering 496 (Mass. 1832), the court, invoking Black-
stone, held that “[i]n considering the identity of the of-
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ORSUCH, J.
fence, it must appear by the plea, that the offence charged
in both cases was the same in law and in fact.” Id., at 509.
The court explained that a second prosecution isn’t pre-
cluded “if the offences charged in the two indictments be
perfectly distinct in point of law, however nearly they may
be connected in fact.” Ibid. (emphasis added). Another
court even ruled “that a man acquitted for stealing the
horse hath yet been arraigned and convict for stealing the
saddle, tho both were done at the same time.” 2 Hale,
supra, at 246. These authorities and many more like them
demonstrate that early courts regularly confronted cases
just like ours and expressly rejected the notion that the
Double Jeopardy Clause barred the relitigation of issues
or facts. See also Grady v. Corbin, 495 U.S. 508, 533–535
(1990) (Scalia, J., dissenting) (collecting authorities); 2 W.
Hawkins, Pleas of the Crown, ch. 35, p. 371 (1726 ed.); 1 J.
Chitty, Criminal Law 452–457 (1816); M. Friedland, Dou-
ble Jeopardy 179, and n. 2 (1969). Any suggestion that
our case presents a new phenomenon, then, risks overlook-
ing this long history. See post, at 4–5 (GINSBURG, J.,
dissenting).
This Court’s contemporary double jeopardy cases con-
firm what the text and history suggest. Under Block-
burger v. United States, 284 U.S. 299 (1932), the courts
apply today much the same double jeopardy test they did
at the founding. Id., at 304. To prevent a second trial on a
new charge, the defendant must show an identity of statu­
tory elements between the two charges against him; it’s not
enough that “a substantial overlap [exists] in the proof
offered to establish the crimes.” Iannelli v. United States,
420 U.S. 770, 785, n. 17 (1975) (emphasis added). Of
course, Ashe later pressed Blockburger’s boundaries by
suggesting that, in narrow circumstances, the retrial of an
issue can be considered tantamount to the retrial of an
offense. See Yeager, 557 U. S., at 119. But, as we’ve seen,
even there a court’s ultimate focus remains on the practi-
12 CURRIER v. VIRGINIA
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cal identity of offenses, and the only available remedy is
the traditional double jeopardy bar against the retrial of
the same offense—not a bar against the relitigation of
issues or evidence. See id., at 119–120. Even at the outer
reaches of our double jeopardy jurisprudence, then, this
Court has never sought to regulate the retrial of issues or
evidence in the name of the Double Jeopardy Clause.
Nor in acknowledging this do we plow any new ground.
In Dowling v. United States, 493 U.S. 342 (1990), the
defendant faced charges of bank robbery. At trial, the
prosecution introduced evidence of the defendant’s in-
volvement in an earlier crime, even though the jury in
that case had acquitted. Like Mr. Currier, the defendant
in Dowling argued that the trial court should have barred
relitigation of an issue resolved in his favor in an earlier
case and therefore excluded evidence of the acquitted
offense. But the Court refused the request and in doing so
expressly “decline[d] to extend Ashe . . . to exclude in all
circumstances, as [the defendant] would have it, relevant
and probative evidence that is otherwise admissible under
the Rules of Evidence simply because it relates to alleged
criminal conduct for which a defendant has been acquit-
ted.” Id., at 348. If a second trial is permissible, the
admission of evidence at that trial is governed by normal
evidentiary rules—not by the terms of the Double Jeop-
ardy Clause. “So far as merely evidentiary . . . facts are
concerned,” the Double Jeopardy Clause “is inoperative.”
Yates v. United States, 354 U.S. 298, 338 (1957).
On its own terms, too, any effort to transplant civil
preclusion principles into the Double Jeopardy Clause
would quickly meet trouble. 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. Restatement (Second) of Judg-
Cite as: 585 U. S. ____ (2018) 13
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Opinion Court
ORSUCH, J.
ments §19 (1982); Moschzisker, Res Judicata, 38 Yale L. J.
299, 325 (1929). But in a criminal case, Blockburger pre-
cludes a trial on an offense only if a court has previously
heard the same offense as measured by its statutory ele-
ments. 284 U. S., at 304. And this Court has emphatic-
ally refused to import into criminal double jeopardy law the
civil law’s more generous “same transaction” or same
criminal “episode” test. See Garrett v. United States, 471
U.S. 773, 790 (1985); see also Ashe, 397 U. S., at 448
(Harlan, J., concurring).
It isn’t even clear that civil preclusion principles would
help defendants like Mr. Currier. Issue preclusion ad-
dresses the effect in a current case of a prior adjudication
in another case. So it doesn’t often have much to say about
the preclusive effects of rulings “within the framework of a
continuing action.” 18A C. Wright & A. Miller, Federal
Practice and Procedure §4434 (2d ed. 2002); see also id.,
§4478. Usually, only the more flexible law of the case
doctrine governs the preclusive effect of an earlier decision
“within a single action.” Ibid. And that doctrine might
counsel against affording conclusive effect to a prior jury
verdict on a particular issue when the parties agreed to
hold a second trial covering much the same terrain at a
later stage of the proceedings. Besides, even if issue pre-
clusion is the right doctrine for cases like ours, its applica-
tion usually depends “on ‘an underlying confidence that
the result achieved in the initial litigation was substan-
tially correct.’ ” Bravo-Fernandez, 580 U. S., at ___ (slip
op., at 4) (quoting Standefer v. United States, 447 U.S. 10,
23, n. 18 (1980)). As a result, the doctrine does not often
bar the relitigation of issues when “[t]he party against
whom preclusion is sought could not, as a matter of law,
have obtained review of the judgment in the initial ac-
tion.” Restatement (Second) of Judgments §28. In crimi-
nal cases, of course, the government cannot obtain appel-
late review of acquittals. So a faithful application of civil
14 CURRIER v. VIRGINIA
OpinionofofGthe
Opinion Court
ORSUCH, J.
preclusion principles in our case and others like it might
actually militate against finding preclusion. See Bravo-
Fernandez, supra, at ___ (slip op., at 4); Standefer, supra,
at 22–23, and n. 18.
Neither Mr. Currier nor the dissent offers a persuasive
reply to these points. They cannot dispute that 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 involv[ing]
. . . a different ‘offense.’ ” Post, at 4. They decline to “en-
gage” with the Clause’s history, though the dissent ap-
pears to agree that the Clause was not originally under-
stood to include an issue preclusion rule. See post, at 3–4,
13. Neither Mr. Currier nor the dissent seeks to show
that, even taken on their own terms, civil issue preclusion
principles would apply to cases like this one. Without
text, history, or logic to stand on, the dissent leans heavily
on a comparison to Dowling. In Dowling, the dissent
emphasizes, the two trials involved different criminal
episodes while the two trials here addressed the same set
of facts. But Dowling did not rest its holding on this fea-
ture and the dissent does not explain its relevance. If
issue preclusion really did exist in criminal law, why
wouldn’t it preclude the retrial of any previously tried
issue, regardless whether that issue stems from the same
or a different “criminal episode”?
In the end, Mr. Currier and the dissent must emphasize
various policy reasons for adopting a new rule of issue
preclusion into the criminal law. See post, at 4–5, 8–9.
They contend that issue preclusion is “needed” to combat
the “prosecutorial excesses” that could result from the
proliferation of criminal offenses, post, at 4–5, though we
aren’t sure what to make of this given the dissent’s later
claim that “issue preclusion requires no showing of prose-
cutorial overreaching,” post, at 8. In any event, there are
risks with the approach Mr. Currier and the dissent pro-
Cite as: 585 U. S. ____ (2018) 15
OpinionofofGthe
Opinion Court
ORSUCH, J.
pose. Consider, for example, the ironies that grafting civil
preclusion principles onto the criminal law could invite.
Issue preclusion is sometimes applied offensively against
civil defendants who lost on an issue in an earlier case.
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331–332
(1979). By parallel logic, could we expect the government
to invoke the doctrine to bar criminal defendants from
relitigating issues decided against them in a prior trial?
It’s an outcome few defendants would welcome but one
some have already promoted. See, e.g., Kennelly, Preclud-
ing the Accused: Offensive Collateral Estoppel in Criminal
Cases, 80 Va. L. Rev. 1379, 1380–1381, 1416, 1426–1427
(1994); Vestal, Issue Preclusion and Criminal Prosecu-
tions, 65 Iowa L. Rev. 281, 297, 320–321 (1980).
Maybe worse yet, consider the possible effect on sever-
ances. Today, some state courts grant severance motions
liberally to benefit defendants. But 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 means a court must expend resources for two trials
where the Constitution would have permitted one. Wit-
nesses and victims must endure a more protracted ordeal.
States sometimes accept these costs to protect a defendant
from potential prejudice. But 20 States appearing before
us have warned that some jurisdictions might respond to
any decision increasing the costs of severed trials by mak-
ing them less freely available. See Brief for Indiana et al.
as Amici Curiae 4, 16–20. Of course, that’s only a predic-
tion. But it’s a hard if unwanted fact that “[t]oday’s elabo-
rate body of procedural rules” can contribute to making
“trials expensive [and] rare.” W. Stuntz, The Collapse
of American Criminal Justice 39 (2011). And it would be
a mistake to ignore the possibility that by making sever-
ances more costly we might wind up making them rarer too.
The fact is, civil preclusion principles and double jeop-
16 CURRIER v. VIRGINIA
OpinionofofGthe
Opinion Court
ORSUCH, J.
ardy are different doctrines, with different histories, serv-
ing different purposes. Historically, both claim and issue
preclusion have sought to “promot[e] judicial economy by
preventing needless litigation.” Parklane Hosiery, supra,
at 326. That interest may make special sense in civil
cases where often only money is at stake. But the Double
Jeopardy Clause and the common law principles it built
upon govern criminal cases and concern more than effi-
ciency. They aim instead, as we’ve seen, 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 Mr. Currier
seeks.
Nor are we at liberty to rewrite those terms or that
history. While the growing number of criminal offenses in
our statute books may be cause for concern, see post, at 4–
5 (GINSBURG, J., dissenting), no one should expect (or
want) judges to revise the Constitution to address every
social problem they happen to perceive. The proper au-
thorities, the States and Congress, are empowered to
adopt new laws or rules experimenting with issue or claim
preclusion in criminal cases if they wish. In fact, some
States have already done so. On these matters, the Con-
stitution dictates no answers but entrusts them to a self-
governing people to resolve.
*
The judgment of the Virginia Supreme Court is
Affirmed.
Cite as: 585 U. S. ____ (2018) 1
KENNEDY, J., concurring in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1348
_________________
MICHAEL NELSON CURRIER, PETITIONER v.
VIRGINIA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
VIRGINIA
[June 22, 2018]
JUSTICE KENNEDY, concurring in part.
I join Parts I and II of the Court’s opinion, which, in my
view, suffice to resolve this case in a full and proper way.
There is a strong public “interest in giving the prosecu-
tion one complete opportunity to convict those who have
violated its laws.” Arizona v. Washington, 434 U.S. 497,
509 (1978). The reason that single opportunity did not
occur in one trial here was because both parties consented
to sever the possession charge to avoid introducing evi-
dence of petitioner’s prior conviction during his trial for
burglary and larceny. Petitioner acknowledges that by
consenting to severance he cannot argue that the Double
Jeopardy Clause bars the second trial. See Brief for Peti-
tioner 9–10. He instead contends that, even though he
consented to severance, he preserved the double jeopardy
protections applied in Ashe v. Swenson, 397 U.S. 436(1970), protections that, in Ashe, were a bar to relitigation
of factual issues adjudicated in a previous trial.
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 individ-
ual for an alleged offense, thereby subjecting him to embar-
rassment, 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
2 CURRIER v. VIRGINIA
KENNEDY, J., concurring in part
may be found guilty.” Green v. United States, 355 U.S.
184, 187–188 (1957). But this “is not a principle which
can be expanded to include situations in which the de-
fendant is responsible for the second prosecution.” United
States v. Scott, 437 U.S. 82, 95–96 (1978); see also id., at
99 (The “Clause, which guards against Government op-
pression, does not relieve a defendant from the conse-
quences of his voluntary choice”). This rule recurs
throughout the Court’s double jeopardy cases, see, e.g.,
Jeffers v. United States, 432 U.S. 137, 152 (1977); Ohio v.
Johnson, 467 U.S. 493, 500, n. 9, 502 (1984); Evans v.
Michigan, 568 U.S. 313, 326 (2013), and, in my view, it
controls here.
The end result is that when a defendant’s voluntary
choices lead to a second prosecution he cannot later use
the Double Jeopardy Clause, whether thought of as pro-
tecting against multiple trials or the relitigation of issues,
to forestall that second prosecution. The extent of the
Double Jeopardy Clause protections discussed and defined
in Ashe need not be reexamined here; for, whatever the
proper formulation and implementation of those rights
are, they can be lost when a defendant agrees to a second
prosecution. Of course, this conclusion is premised on the
defendant’s having a voluntary choice, and a different
result might obtain if that premise were absent. Cf.
Turner v. Arkansas, 407 U.S. 366, 367 (1972) (per curiam)
(applying Ashe to a second trial where state law prohibited
a single trial of the charges at issue).
Cite as: 585 U. S. ____ (2018) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1348
_________________
MICHAEL NELSON CURRIER, PETITIONER v.
VIRGINIA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
VIRGINIA
[June 22, 2018]
JUSTICE GINSBURG, with whom JUSTICE BREYER,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Michael Nelson Currier was charged in Virginia state
court with (1) breaking and entering, (2) grand larceny,
and (3) possessing a firearm after having been convicted of
a felony. All three charges arose out of the same criminal
episode. 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 recog-
nizing 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.
After trial for breaking and entering and grand larceny,
the jury acquitted Currier of both charges. The prosecutor
then chose to proceed against Currier on the severed felon-
in-possession charge. Currier objected to the second trial
on double jeopardy grounds. He argued that the jury
acquittals of breaking and entering and grand larceny
established definitively and with finality that he had not
participated in the alleged criminal episode. Invoking the
issue-preclusion component of the double jeopardy ban,
Currier urged that in a second trial, the Commonwealth
could not introduce evidence of his alleged involvement in
2 CURRIER v. VIRGINIA
GINSBURG, J., dissenting
breaking and entering and grand larceny, charges on
which he had been acquitted. He further maintained that
without allowing the prosecution a second chance to prove
breaking and entering and grand larceny, the evidence
would be insufficient to warrant conviction of the felon-in-
possession charge.
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 acquit-
tals of breaking and entering and grand larceny.
I
This Court’s decisions “have recognized that the [Double
Jeopardy] Clause embodies two vitally important inter-
ests.” Yeager v. United States, 557 U.S. 110, 117 (2009).
“The first is the ‘deeply ingrained’ 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 contin-
uing state of anxiety and insecurity, as well as enhancing
the possibility that even though innocent he may be found
guilty.’ ” Id., at 117–118 (quoting Green v. United States,
355 U.S. 184, 187–188 (1957)). The second interest the
Clause serves is preservation of the “finality of judg-
ments,” 557 U. S., at 118 (internal quotation marks omit-
ted), particularly acquittals, see id., at 122–123 (an ac-
quittal’s “finality is unassailable”); Evans v. Michigan,
568 U.S. 313, 319 (2013) (“The law attaches particular
significance to an acquittal.” (internal quotation marks
omitted)).
The Clause effectuates its overall guarantee through
multiple protections. Historically, among those protec-
tions, the Court has safeguarded the right not to be sub-
ject to multiple trials for the “same offense.” See Brown v.
Ohio, 432 U.S. 161, 165 (1977). That claim-preclusive
Cite as: 585 U. S. ____ (2018) 3
GINSBURG, J., dissenting
rule stops the government from litigating the “same of-
fense” or criminal charge in successive prosecutions, re-
gardless of whether the first trial ends in a conviction or
an acquittal. See Bravo-Fernandez v. United States, 580
U.S. ___, ___ (2016) (slip op., at 3); Brown, 432 U. S., at
165. To determine whether two offenses are the “same,”
this Court has held, a court must look to the offenses’
elements. Blockburger v. United States, 284 U.S. 299, 304
(1932). If each offense “requires proof of a fact which the
other does not,” Blockburger established, the offenses are
discrete and the prosecution of one does not bar later
prosecution of the other. Ibid. If, however, two offenses
are greater and lesser included offenses, the government
cannot prosecute them successively. See Brown, 432 U. S.,
at 169.
Also shielded by the Double Jeopardy Clause is the
issue-preclusive effect of an acquittal. First articulated in
Ashe v. Swenson, 397 U.S. 436 (1970), the issue-
preclusive aspect of the Double Jeopardy Clause prohibits
the government from relitigating issues necessarily re-
solved in a defendant’s favor at an earlier trial presenting
factually related offenses. Ashe involved the robbery of six
poker players by a group of masked men. Id., at 437.
Missouri tried Ashe first for the robbery of Donald Knight.
Id., at 438. At trial, proof that Knight was the victim of a
robbery was “unassailable”; the sole issue in dispute was
whether Ashe was one of the robbers. Id., at 438, 445. A
jury found Ashe not guilty. Id., at 439. Missouri then
tried Ashe for robbing a different poker player at the same
table. Ibid. The witnesses at the second trial “were for
the most part the same,” although their testimony for the
prosecution was “substantially stronger” than it was at the
first trial. Id., at 439–440. The State also “refined its
case” by declining to call a witness whose identification
testimony at the first trial had been “conspicuously nega-
tive.” Id., at 440. The second time around, the State
4 CURRIER v. VIRGINIA
GINSBURG, J., dissenting
secured a conviction. Ibid.
Although the second prosecution involved a different
victim and thus a different “offense,” this Court held that
the second prosecution violated the Double Jeopardy
Clause. A component of that Clause, the Court explained,
rests on the principle that “when an issue of ultimate fact
has once been determined by a valid and final judgment,
that issue cannot again be litigated between the same
parties in any future lawsuit.” Id., at 443, 445. Conse-
quently, “after a jury determined by its verdict that [Ashe]
was not one of the robbers,” the State could not “constitu-
tionally hale him before a new jury to litigate that issue
again.” Id., at 446.
In concluding that the Double Jeopardy Clause includes
issue-preclusion protection for defendants, the Court
acknowledged that no prior decision had “squarely held
[issue preclusion] to be a constitutional requirement.” Id.,
at 445, n. 10. “Until perhaps a century ago,” the Court
explained, “few situations arose calling for [issue preclu-
sion’s] application.” Ibid. “[A]t common law” and “under
early federal criminal statutes, offense categories were
relatively few and distinct,” and “[a] single course of crim-
inal conduct was likely to yield but a single offense.” Ibid.
“[W]ith the advent of specificity in draftsmanship and the
extraordinary proliferation of overlapping and related
statutory offenses,” however, “it became possible for prose-
cutors to spin out a startlingly numerous series of offenses
from a single alleged criminal transaction.” Ibid. With
this proliferation, “the potential for unfair and abusive
reprosecutions became far more pronounced.” Ibid.
Toward the end of the 19th century, courts increasingly
concluded that greater protections than those traditionally
afforded under the Double Jeopardy Clause were needed
to spare defendants from prosecutorial excesses. Federal
courts, cognizant of the increased potential for exposing
defendants to multiple charges based on the same crimi-
Cite as: 585 U. S. ____ (2018) 5
GINSBURG, J., dissenting
nal episode, borrowed issue-preclusion principles from the
civil context to bar relitigation of issues necessarily re-
solved against the government in a criminal trial. Ibid.;
cf. United States v. Oppenheimer, 242 U.S. 85, 87 (1916)
(“It cannot be that the safeguards of the person, so often
and so rightly mentioned with solemn reverence, are less
than those that protect from a liability in debt.”). By 1970,
when Ashe was decided, issue preclusion, “[a]lthough first
developed in civil litigation,” had become “an established
rule of federal criminal law.” Ashe, 397 U. S., at 443. The
question presented in Ashe was whether issue preclusion
is not just an established rule of federal criminal proce-
dure, but also a rule of constitutional stature. The Court
had no “hesitat[ion]” in concluding that it is. Id., at 445.
Since Ashe, this Court has reaffirmed that issue preclu-
sion ranks with claim preclusion as a Double Jeopardy
Clause component. Harris v. Washington, 404 U.S. 55, 56
(1971) (per curiam). Given criminal codes of prolix charac-
ter, issue preclusion both arms defendants against prose-
cutorial excesses, see Ashe, 397 U. S., at 445, n. 10, and
preserves the integrity of acquittals, see Yeager, 557 U. S.,
at 118–119. See also id., at 119 (Double Jeopardy Clause
shields defendants against “relitiga[tion] [of] any issue
that was necessarily decided by a jury’s acquittal in a
prior trial”).
II
On March 7, 2012, a large safe containing some $71,000
in cash and 20 firearms was stolen from Paul and Brenda
Garrison’s home. When police recovered the safe, which
had been dumped in a river, the firearms remained inside,
but most of the cash was gone. After a neighbor reported
seeing a white pickup truck leaving the Garrisons’ drive-
way around the time of the theft, police identified the
Garrisons’ nephew, Bradley Wood, as a suspect. Wood
later implicated Currier as an accomplice. A grand jury
6 CURRIER v. VIRGINIA
GINSBURG, J., dissenting
indicted Currier for breaking and entering, grand larceny,
and possessing a firearm after having been convicted of a
felony. The felon aspect of the felon-in-possession charge
was based on Currier’s prior convictions for burglary and
larceny. Currier was “in possession” of the firearms, the
prosecution contended, based on his brief handling of the
guns contained in the safe (taking them out and putting
them back) when the remaining cash was removed from
inside.
Virginia courts, like many others, recognize that trying
a felon-in-possession charge together with offenses that do
not permit the introduction of prior felony convictions can
be hugely prejudicial to a defendant. See Hackney v.
Commonwealth, 28 Va. App. 288, 293–294, 504 S.E.2d
385, 388 (1998) (en banc). Evidence of prior convictions,
they have observed, can “confus[e] the issues before the
jury” and “prejudice the defendant in the minds of the jury
by showing his or her depravity and criminal propensity.”
Id., at 293, 504 S.E. 2d, at 388. Virginia courts therefore
hold that “unless the Commonwealth and defendant agree
to joinder, 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.” Id., at 295, 504
S.E. 2d, at 389. In Currier’s case, the prosecution and
Currier acceded to the Commonwealth’s default rule, and
the trial court accordingly severed the felon-in-possession
charge from the breaking and entering and grand larceny
charges.
The Commonwealth proceeded to try Currier first for
breaking and entering and grand larceny. Witnesses for
the prosecution testified to Currier’s involvement in the
crimes. First, Wood testified that Currier helped him
break into the Garrisons’ home and steal the safe. Second,
the Garrisons’ neighbor testified that she believed Currier
was the passenger in the pickup truck she had seen leav-
ing the Garrisons’ residence. The prosecution also sought
Cite as: 585 U. S. ____ (2018) 7
GINSBURG, J., dissenting
to introduce evidence that a cigarette butt found in
Wood’s pickup truck carried Currier’s DNA. But the court
excluded that evidence because the prosecution failed to
disclose it at least 21 days in advance of trial, as Virginia
law required.
The sole issue in dispute at the first trial, Currier main-
tains, was whether he participated in the break-in and
theft. See App. 35 (prosecutor’s closing statement, stating
“What is in dispute? Really only one issue and one issue
alone. Was the defendant, Michael Currier, one of those
people that was involved in the offense?”). The case was
submitted to the jury, which acquitted Currier of both
offenses.
Despite the jury’s acquittal verdicts, the prosecution
proceeded against Currier on the felon-in-possession
charge. In advance of his second trial, Currier moved to
dismiss the gun-possession charge based on the issue-
preclusion component of the Double Jeopardy Clause. He
urged that the jury at his first trial rejected the govern-
ment’s contention that he was involved in the break-in
and theft. Cf. Ashe, 397 U. S., at 446 (common issue in
first and second trials was whether Ashe was one of the
robbers). If the government could not attempt to prove
anew his participation in the break-in and theft, he rea-
soned, there would be no basis for a conviction on the gun-
possession charge. I.e., his involvement in handling the
guns, on the government’s theory of the case, depended on
his anterior involvement in breaking and entering the
Garrisons’ residence and stealing their safe. The trial
court refused to dismiss the prosecution or to bar the
government from introducing evidence of Currier’s alleged
involvement in the break-in and theft.
At the second trial, the prosecution shored up its at-
tempt to prove Currier’s participation in the break-in and
theft. The witnesses refined their testimony. Remedying
its earlier procedural lapse by timely notifying Currier,
8 CURRIER v. VIRGINIA
GINSBURG, J., dissenting
the prosecution introduced the cigarette butt evidence.
And, of course, to show Currier was a felon, the prosecu-
tion introduced his prior burglary and larceny convictions.
The jury found Currier guilty of the felon-in-possession
offense.
III
The Court holds that even if Currier could have asserted
a double jeopardy issue-preclusion defense in opposition to
the second trial, he relinquished that right by acquiescing
in severance of the felon-in-possession charge. This hold-
ing is not sustainable. A defendant’s consent to severance
does not waive his right to rely on the issue-preclusive
effect of an acquittal.
A
It bears clarification first that, contra to the Court’s
presentation, issue preclusion requires no showing of
prosecutorial overreaching. But cf. ante, at 7 (stating that
“the Double Jeopardy Clause exists to prevent [prosecuto-
rial oppression]”). This Court so ruled in Harris v. Wash-
ington, 404 U.S. 55, and it has subsequently reinforced
the point in Turner v. Arkansas, 407 U.S. 366 (1972) (per
curiam), and Yeager v. United States, 557 U.S. 110.
In Harris, the Washington Supreme Court declined to
give an acquittal issue-preclusive effect because there was
“no indication of bad faith of the state in deliberately
making a ‘trial run’ in the first prosecution.” State v.
Harris, 78 Wash. 2d 894, 901, 480 P.2d 484, 488 (1971).
The State Supreme Court further observed that “it was to
the advantage of the defendant, and not the state, to
separate the trials” because certain evidence was inadmis-
sible in the first trial that would be admissible in the
second. Id., at 898, 480 P. 2d, at 486. This Court reversed
and explained that an acquittal has issue-preclusive effect
“irrespective of the good faith of the State in bringing
Cite as: 585 U. S. ____ (2018) 9
GINSBURG, J., dissenting
successive prosecutions.” Harris, 404 U. S., at 57.
In Turner, Arkansas prosecutors believed the defendant
had robbed and murdered someone. 407 U. S., at 366. An
Arkansas statute required that murder be charged sepa-
rately, with no other charges appended. Id., at 367. After
a jury acquitted Turner on the murder charge, the State
sought to try him for robbery. Id., at 366–367. Even
though state law, not an overzealous prosecutor, dictated
the sequential trials, this Court held that the defendant
was entitled to assert issue preclusion and found the case
“squarely controlled by Ashe.” Id., at 370.
In Yeager, the defendant stood trial on numerous factu-
ally related offenses. 557 U. S., at 113–114. After a jury
acquitted on some counts but hung on others, the prosecu-
tion sought to retry a number of the hung counts. Id., at
115. The defendant argued that issue preclusion should
apply in the second trial. In opposition, the prosecution
stressed that a retrial “presen[ted] none of the governmen-
tal overreaching that double jeopardy is supposed to pre-
vent.” Brief for United States in Yeager v. United States,
O. T. 2008, No. 08–67, p. 26 (internal quotation marks
omitted). Indeed, the prosecution had “attempted to bring
all the charges in a single proceeding,” and it was seeking
a second trial on some charges only “because the jury
hung.” Ibid. The Court did not regard as controlling the
lack of prosecutorial overreaching. Instead, it emphasized
that “[a] jury’s verdict of acquittal represents the commu-
nity’s collective judgment regarding all the evidence
and arguments presented to it” and that, once rendered,
an acquittal’s “finality is unassailable.” 557 U. S., at
122–123.
B
There is in Currier’s case no suggestion that he expressly
waived a plea of issue preclusion at a second trial, or that
he failed to timely assert the plea. Instead, the conten-
10 CURRIER v. VIRGINIA
GINSBURG, J., dissenting
tion, urged by the prosecution and embraced by this Court,
is that Currier surrendered his right to assert the issue-
preclusive effect of his first-trial acquittals by consenting
to two trials.
This Court “indulge[s] every reasonable presumption
against waiver of fundamental constitutional rights.”
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal
quotation marks omitted). It has found “waiver by con-
duct” only where a defendant has engaged in “conduct
inconsistent with the assertion of [the] right.” Pierce Oil
Corp. v. Phoenix Refining Co., 259 U.S. 125, 129 (1922).
For example, a defendant who “voluntarily absents him-
self” from trial waives his Sixth Amendment right to be
present. Taylor v. United States, 414 U.S. 17, 19 (1973)
(per curiam) (internal quotation marks omitted). Similarly,
a defendant who “obtains the absence of a witness by
wrongdoing” may “forfeit” or “waive” his Sixth Amend-
ment right to confront the absent witness. Davis v. Wash-
ington, 547 U.S. 813, 833 (2006). Where, however, a
defendant takes no action inconsistent with the assertion
of a right, the defendant will not be found to have waived
the right.
Currier took no action inconsistent with assertion of an
issue-preclusion plea. To understand why, one must
comprehend just what issue preclusion forecloses. Unlike
the right against a second trial for the same offense (claim
preclusion), issue preclusion prevents relitigation of a
previously rejected theory of criminal liability without
necessarily barring a successive trial. Take Ashe, for
example. Issue preclusion prevented the prosecution from
arguing, at a second trial, that Ashe was one of the rob-
bers who held up the poker players at gunpoint. But if the
prosecution sought to prove, instead, that Ashe waited
outside during the robbery and then drove the getaway
car, issue preclusion would not have barred that trial.
Similarly here, the prosecution could not again attempt to
Cite as: 585 U. S. ____ (2018) 11
GINSBURG, J., dissenting
prove that Currier participated in the break-in and theft
of the safe at the Garrisons’ residence. But a second trial
could be mounted if the prosecution alleged, for instance,
that Currier was present at the river’s edge when others
showed up to dump the safe in the river, and that Currier
helped to empty out and replace the guns contained in the
safe.
In short, issue preclusion does not operate, as claim
preclusion does, to bar a successive trial altogether. Issue
preclusion bars only a subset of possible trials—those in
which the prosecution rests its case on a theory of liability
a jury earlier rejected. That being so, consenting to a
second trial is not inconsistent with—and therefore does
not foreclose—a defendant’s gaining the issue-preclusive
effect of an acquittal.
The Court cites Jeffers v. United States, 432 U.S. 137(1977), United States v. Dinitz, 424 U.S. 600 (1976), and
United States v. Scott, 437 U.S. 82 (1978), as support for a
second trial, on the ground that Currier consented to it.
Those decisions do not undermine the inviolacy of an
acquittal.
In Jeffers, the defendant was charged with two offenses,
one of which was a lesser included offense of the other.
432 U. S., at 140–141, 150. He asked for, and gained,
separate trials of the two charges. Id., at 142–143. After
conviction on the lesser included charge, he argued that a
second trial on the remaining charge would violate his
double jeopardy right “against multiple prosecutions.” Id.,
at 139, 143–144. A plurality of this Court rejected Jeffers’
argument, reasoning that he had waived the relevant
right because he was “solely responsible for the successive
prosecutions.” Id., at 154.
Jeffers presented a claim-preclusion question. The
Court there said not one word about issue preclusion. Nor
did the Court address the staying power of an acquittal. It
had no occasion to do so, as Jeffers was convicted on the
12 CURRIER v. VIRGINIA
GINSBURG, J., dissenting
first charge. Indeed, some years later, three Justices,
including the author of the Jeffers plurality, stated: “There
is no doubt that had the defendant in Jeffers been acquit-
ted at the first trial, the [issue-preclusion protection]
embodied in the Double Jeopardy Clause would have
barred a second trial on the greater offense.” Green v.
Ohio, 455 U.S. 976, 980 (1982) (White, J., joined by
Blackmun and Powell, JJ., dissenting from the denial of
certiorari) (emphasis added).
Dinitz and Scott are even weaker reeds. In Dinitz, the
defendant requested, and gained, a mistrial after the trial
judge expelled his lead counsel from the courtroom. 424
U. S., at 602–605. In Scott, the defendant sought and
obtained dismissal of two of three counts prior to their
submission to the jury. 437 U. S., at 84. The question in
each case was whether the defendant’s actions deprived
him of the right to be spared from a second trial on the
same offenses. Both decisions simply concluded that when
a defendant voluntarily seeks to terminate a trial before a
substantive ruling on guilt or innocence, the Double Jeop-
ardy Clause is not offended by a second trial. The cases,
however, said nothing about the issue-preclusive effect of
a prior acquittal at a subsequent trial. Cf. Burks v. United
States, 437 U.S. 1, 17 (1978) (“It cannot be meaningfully
said that a person ‘waives’ his right to a judgment of ac-
quittal by moving for a new trial.”). As was the case in
Jeffers, Dinitz and Scott presented no occasion to do so.1
——————
1 Ohio v. Johnson, 467 U.S. 493 (1984), cited by JUSTICE KENNEDY,
ante, at 2, is not in point. It, too, like Jeffers, Scott, and Dinitz, involved
claim preclusion, not issue preclusion, i.e., trial of greater offenses after
guilty pleas to lesser offenses. See supra, at 2–3. The case does contain
an enigmatic footnote stating, “in a case such as this, where the State
has made no effort to prosecute the charges seriatim, the considerations
of double jeopardy protection implicit in the application of [issue
preclusion] are inapplicable.” 467 U. S., at 500, n. 9. True in a case
like Johnson, which involved no prior acquittals, I would not read more
into a terse, unelaborated footnote that contains no citation.
Cite as: 585 U. S. ____ (2018) 13
GINSBURG, J., dissenting
IV
Venturing beyond JUSTICE KENNEDY’s rationale for
resolving this case, the plurality would take us back to the
days before the Court recognized issue preclusion as a
constitutionally grounded component of the Double Jeop-
ardy Clause. See ante, at 14 (questioning whether issue
preclusion “really . . . exist[s] in criminal law”). I would
not engage in that endeavor to restore things past.2
One decision, however, should be set straight. The
plurality asserts that Dowling v. United States, 493 U.S.
342 (1990), established that issue preclusion has no role to
play in regulating the issues or evidence presented at a
successive trial. Ante, at 12. Dowling did no such thing.
The case is tied to Federal Rule of Evidence 404(b), which
allows the prosecution to introduce evidence of a defend-
ant’s past criminal conduct for described purposes other
——————
Evans v. Michigan, 568 U.S. 313 (2013), cited by the Court, ante, at
7, and JUSTICE KENNEDY, ante, at 2, is even further afield. There, the
trial court erroneously granted a judgment of acquittal. The State
sought retrial in view of the error. This Court held that, despite the
error, the acquittal was a final judgment, which could not be undone.
568 U. S., at 316. Whatever may be said of Evans, that decision is
certainly no authority for watering down the issue-preclusive effect of a
judgment acquitting the defendant.
Garrett v. United States, 471 U.S. 773 (1985), cited by the plurality,
ante, at 13, also involves claim preclusion, not issue preclusion. The
Court held, unremarkably, that a crime transpiring in one day is not
the “same offense” as a continuing criminal enterprise spanning more
than five years. Id., at 788.
2 If issue preclusion does exist in criminal law, the plurality asserts, it
has only “guarded application,” Bravo-Fernandez v. United States, 580
U.S. ___, ___ (2016) (slip op., at 4). See ante, at 9. I do not gainsay
that assertion. Bravo-Fernandez itself, however, involved the special
problem of inconsistent verdicts rendered by the same jury. It held
only that an acquittal cannot convey rejection of the prosecutor’s
allegations when the jury simultaneously convicts the defendant of an
offense turning on acceptance of the same allegations. 580 U. S., at ___
(slip op., at 2).
14 CURRIER v. VIRGINIA
GINSBURG, J., dissenting
than to show a defendant’s bad character. See Fed. Rule
Evid. 404(b)(2). The defendant in Dowling was prosecuted
for robbing a bank. 493 U. S., at 344. To bolster its case
that Dowling was the perpetrator, the Government sought
to introduce evidence that Dowling participated in a home
invasion two weeks after the bank robbery. Id., at 344–
345. One difficulty for the prosecution: Dowling had been
acquitted of the home invasion. Id., at 345. Nevertheless,
the trial court admitted the evidence, informing the jurors
that Dowling had been acquitted of the home-invasion
charge and instructing them on the “limited purpose” for
which the evidence was introduced. Id., at 345–346.
The Court in Dowling “decline[d] to extend Ashe” to
forbid the prosecution from introducing evidence, under
Rule 404(b), of a crime for which the defendant had been
acquitted, one involving criminal conduct unrelated to the
bank robbery for which Dowling stood trial. Id., at 348.
The charge for which Dowling was acquitted took place at
a different time and involved different property, a differ-
ent location, and different victims. Id., at 344. See also
United States v. Felix, 503 U.S. 378, 386 (1992) (stressing
that the two crimes in Dowling were “unrelated”). It
surely could not be said that, in the bank robbery trial,
Dowling was being tried a second time for the later-
occurring home invasion offense. Here, by contrast, the
two trials involved the same criminal episode. See Ashe,
397 U. S., at 446 (“same robbery”); Turner, 407 U. S., at
368–369 (“the same set of facts, circumstances, and the
same occasion” (internal quotation marks omitted)).
Extending Dowling from the Evidence Rule 404(b)
context in which it was embedded to retrials involving the
same course of previously acquitted conduct would un-
dermine issue-preclusion’s core tenet. That tenet was well
stated by Judge Friendly in United States v. Kramer, 289
F.2d 909 (CA2 1961):
Cite as: 585 U. S. ____ (2018) 15
GINSBURG, J., dissenting
“A defendant who has satisfied one jury that he had
no responsibility for a crime ought not be forced to
convince another of this [lack of responsibility]. . . .
The very nub of [issue preclusion] is to extend res ju-
dicata beyond those cases where the prior judgment is
a complete bar. The Government is free, within limits
set by the Fifth Amendment, to charge an acquitted
defendant with other crimes claimed to arise from the
same or related conduct; but it may not prove the new
charge by asserting facts necessarily determined
against it on the first trial . . . .” Id., at 915–916 (cita-
tion omitted).
So here. The first trial established that Currier did not
participate in breaking and entering the Garrisons’ resi-
dence or in stealing their safe. The government can at-
tempt 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.
* * *
For the reasons stated, I would reverse the judgment of
the Virginia Supreme Court.