On Ashe v. Swenson: Double Jeopardy and Collateral Estoppel

Many laypersons suffer from misconceptions about the protections offered by the Double Jeopardy Clause contained in the 5th Amendment to the Constitution. As Blonde Justice pointed out in one of her funnier posts, for example, double jeopardy does not cover the situation in which the defendant is forced to show up twice for court appearances on the same charge.  Nor does it prevent someone convicted of a criminal offense (a robbery in 2009, for example) from ever again being charged with that same offense (say, a different robbery in 2011).

At the same time, if laypersons tend to overestimate the potential protections of the Double Jeopardy Clause, many lawyers may make the opposite mistake; that is, they may underestimate the extent of the constitutional protection against being put “twice in jeopardy” for the same offense.  And that’s because they may not be aware of what is currently my favorite U.S. Supreme Court case:  Ashe v. Swenson, 397 U.S. 436 (1970).   I had in fact read the case in law school but forgot about it until just recently.

The traditional view of double jeopardy – Ashe refers to the “hypertechnical and archaic approach of a 19^th century pleading book” – holds that offenses are identical if the facts required to convict of one offense would necessarily convict of the other.  To determine whether two offenses are different, the test is whether one offense requires proof of an additional fact which the other does not, even though each offense may arise from the same transaction and some of the acts may be necessary to prove both.  If proof of an additional fact is required, an acquittal or conviction under either is not a bar to protection and conviction under the other.

And then came Ashe v. Swenson.

The defendant in Ashe was charged with robbing six men involved in a poker game.  Because the robbery of each individual involved a fact (i.e., the individual’s identity) unique to that individual, the defendant was appropriately charged with six different counts of robbery.

The defendant was initially tried for the robbery of one of the poker players.  The poker player and three other victims of the robbery testified at the trial against the defendant. Although proof that the robbery had occurred was “unassailable,” the government’s case that the defendant was present during the robbery was “weak,” and the defendant was acquitted.

The defendant was then tried for the robbery of a second member of the poker game.  This time, although “the witnesses were for the most part the same,” their testimony “was substantially stronger on the issue of the [defendant’s] identity.” Government prosecutors admitted that the first prosecution had in effect served as a dry run for the second.

The Supreme Court reversed the conviction and remanded for further proceedings. Because the second prosecution involved a different victim of the robbery, and thus involved a fact that had not been litigated in the first prosecution, it did not violate a narrow and perhaps more traditional interpretation of the Double Jeopardy Clause. It did, however, violate the principle of collateral estoppel which the Ashe Court held is encompassed within the protection of the Double Jeopardy Clause:  “The ultimate question to be determined . . . is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy.  For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.”

The Ashe court defined collateral estoppel as follows:  “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.”  As applied to the fact pattern in Ashe, it meant that, because a jury could not have acquitted the defendant of the first robbery without determining that he had not been present during the robbery at all, the defendant could not be tried again on that same “issue of ultimate fact” even though the complaining witness at the second trial was different.  To rule otherwise, Ashe held, would be to allow the government to “refine” its prosecution in a second trial “in light of the turn of events at the first trial.”

Ashe referred to “collateral estoppel” which actually encompasses two separate concepts.  One concept is issue preclusion; the other claim preclusion.   The fact pattern in Ashe clearly satisfied the elements of issue preclusion.  There was no question that the poker players were robbed.  The question was whether or not the defendant was one of the robbers.  That one jury looked at the evidence and determined that the defendant had not been present at the robbery protected the defendant from ever being put into jeopardy on those same facts again.

Still to be tested, as far as I can tell, is the extent to which Ashe applies to claim preclusion.  Claim preclusion in the civil context in Virginia has been defined as “the effect of a judgment in foreclosing litigation of a matter that has never been litigated, because of a determination that it should have been advanced in an earlier suit.”

More on that to come.  H/T to Professor James Strazzella (“Strazz!”) of Temple Law for reminding me about Ashe, a case I had once read in his class.