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June 22, 2018

SCOTUS rules 5-4 against finding Double Jeopardy Clause limits prosecutors over severed trials

The Supreme Court this morning handed down Currier v. Virginia, No. 16-1358 (S. Ct. June 22, 2018) (available here), dealing with the reach of the Double Jeopardy Clause. Here is how Justice Gorsuch's lead opinion gets started (ending with a question that the Court answers "no"):

About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury’s deliberations 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?

The dissent authored by Justice Ginsburg and joined by Justices Breyer, Sotomayor and Kagan, starts this way:

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 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.

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 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 acquittals of breaking and entering and grand larceny.

June 22, 2018 at 10:18 AM | Permalink


Doug, here are two quick comments before I hop on a plane to Ohio.

I think Currier is an example of the "self-imposed first jeopardy" concept/exception to the Fifth amendment. It must be the State who imposes first jeopardy to trigger the DJ protection. U.S. v Diaz can be read as a self imposed first jeopardy case, which waived the claim to double jeopardy. Diaz hustled into magistrate's court to plead guilty to misdemeanor assault before the victim died. which cannot be a bar to prosecution for murder.

Second, and keep an open mind on this one. I firmly believe that possession of firearm by felon is not a crime in the Sixth amendment sense and therefore, it need not be tried before a jury with proof beyond a reasonable doubt. My belief stems from my position that a prior conviction cannot be an element of a crime, it can only enhance punishment for a crime. Otherwise, there wouldn't be a prior conviction exemption to the Apprendi rule. I can send you an manuscript from a CLE presentation on the topic of how to deal with PFBF. In my last four murder trials, I was able to keep the jury from hearing about the prior conviction

The NC Supreme Court has ruled in one of my cases, that PFBF does not impose criminal punishment be cause it is a civil regulatory scheme. More on this in the CLE presentation.

Gotta run!

best regards,


Posted by: bruce cunningham | Jun 22, 2018 1:34:20 PM

Doug, my wife says I have fifteen more minutes before we leave.

Another reason I believe Currier loses is because of the distinction between the European Inquisitorial system and the American adversarial system when it comes to jury verdicts. No verdict sheet in America has a space for the jury to check the defendant is "innocent." The closest thing is a verdict of not guilty, which means the State did not carry its burden of proof beyond a reasonable doubt that the def did the alleged offense.

That is a big difference. In Europe, the purpose is to seek the truth. In US, trials are about whether the State can prove guilt.

Another comment is that PFBF is not a lesser included offense of Larceny and Breaking and Entering, therefore the DJ standard under Brown v Ohio does not apply. And I think that in the modern era, the Blockburger test is totally useless. It no longer serves to determine when two crimes are the "same offense" or not. I distinctly remember Professor Peter Low at UVa law school telling the class 45 years ago that Blockburger is a case that has come to mean what the headnotes say, not what the opinion says. the opinion talks about"same facts" not same elements. I share your aversion to the word "element" when it comes to analyzing elusive issues.

I currently am litigating the question of whether we should resort to the Brown test instead of the Blockburger test when it comes to deciding if Attempted Murder and Assault With a Deadly Weapon with Intent to Kill are separate crimes or the same crime, when the assault is used as the overt act of the common law crime of attempted murder.

If anyone wants to join in on this discussion I welcome their comments. DJ issues are a morass! I am also litigating that the State cannot indefinitely try a def after a hung jury causing a mistrial. I think that the notion of a hung jury is a "manifest necessity" to end the trial, justifying a retrial , is a tautology.


Posted by: bruce cunningham | Jun 22, 2018 1:50:14 PM

Part 3 of the opinion is an invitation for the government, in a future case, to ask the Court to discard the current cases holding that collateral estoppel applies to criminal cases. It is difficult to tell from his concurrence whether Justice Kennedy would join such an opinion if it were properly raised (as he merely notes that it is not necessary to reach that issue here).

I wonder how long it will take such a case to reach the Supreme Court (or for the Supreme Court to decide that to overrule Ashe as it will be easy in almost all cases for Justice Kennedy to distinguish Ashe).

Posted by: tmm | Jun 22, 2018 2:30:28 PM

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