Collateral Estoppel (Issue Preclusion) and Double Jeopardy

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Supreme Court has also interpreted the Double Jeopardy Clause to incorporate the doctrine of “collateral estoppel” or “issue preclusion” 1 which prohibits re-litigating an issue of fact or law raised and necessarily resolved by a prior judgment.2 The Court first recognized the Double Jeopardy Clause’s issue-preclusion component in Ashe v. Swenson,3 which involved a robbery of six poker players.4 After being acquitted of robbing one of the players because of insufficient evidence, the Ashe defendant was tried and convicted of robbing another player.5 Because the sole issue in dispute in the first trial was whether the defendant was one of the robbers, the Court held that the defendant’s acquittal for robbing one player in the first trial precluded the government from subsequently charging him with robbing another player.6 Explaining that courts must apply issue preclusion in criminal cases with “realism and rationality,” the Ashe Court reasoned that the underlying record ust be closely examined to determine what the first jury’s verdict of acquittal “actually decided.” 7 If a criminal judgment does not depend on a jury’s determination of a particular factual issue, re-litigation of that issue can occur.8

In United States v. Powell, the Court rejected an argument that issue preclusion barred an “inconsistent” jury verdict that included an acquittal on a drug charge but guilty verdicts on using a telephone to “caus[e] and faciliat[e]” that same drug offense.9 Reaffirming a precedent from more than a half a century before,10 the Powell Court held that the “Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity” by the jury cautioned against allowing defendants to challenge inconsistent verdicts on issue preclusion grounds.11

In 2016, the Court extended the logic of Powell in Bravo-Fernandez v. United States.12 In Bravo-Fernandez, a jury returned inconsistent verdicts of conviction and acquittal with respect to two criminal defendants, but the convictions were later vacated for legal errors unrelated to the inconsistency.13 Recognizing Powell's conclusion that inconsistent verdicts do not indicate whether an acquittal resulted from “mistake, compromise, or lenity,” 14 the Court held that the government could re-prosecute on the counts on which a conviction had been initially obtained. According to the Court, because of the “irrationality” of the earlier inconsistent verdicts,15 the criminal defendants could not demonstrate that the first jury had “actually decided” that they did not commit the crime underlying the second trial.16 As a result, while the government could not re-prosecute the defendants in Bravo-Fernandez on the charges that had resulted in acquittal,17 the government could re-prosecute on charges that had previously resulted in guilty verdicts.

1: See Ashe v. Swenson, 397 U.S. 436, 445 (1970). Collateral estoppel and issue preclusion are synonymous terms. See Black’s Law Dictionary 312 (10th ed. 2014) (defining “collateral estoppel” ).
2: See Restatement (Second) of Judgments § 27 (Am. Law Inst. 1981).
3: 397 U.S. at 445. Previously, the Court in Hoag v. New Jersey, concluded that successive trials arising out of a tavern hold-up in which five customers were robbed did not violate the Due Process Clause of the Fourteenth Amendment. See 356 U.S. 464, 466 (1958).
4: Ashe, 397 U.S. at 437.
5: Id. at at 439–40.
6: Id. at 446 (quoting Green v. United States, 355 U.S. 184, 190 (1957)).
7: Id. at 444.
8: See Bobby v. Bies, 556 U.S. 825, 834 (2009) (citing Restatement (Second) of Judgments § 27 cmt. h).
9: See United States v. Powell, 469 U.S. 57, 68 (1984).
10: See Dunn v. United States, 284 U.S. 390, 392 (1932).
11: 469 U.S. at 68–69.
12: No. 15-537, slip op. at 15, 20 (U.S. Nov. 29, 2016) ( “We therefore bracket this case with Powell. . .” ).
13: Id. Had the convictions been overturned because of lack of evidence, the government would have been prohibited from retrying the defendants, as a court’s evaluation of the evidence as insufficient to convict is the equivalent to an acquittal and, accordingly, bars reprosecution for that same offense. See Burks v. United States, 437 U.S. 1, 10–11 (1978).
14: See Bravo-Fernandez, No. 15-537, slip op. at 15.
15: Id. at 16.
16: Id. at 15. The Bravo-Fernandez Court distinguished the case from Yeager v. United States, 557 U.S. 110 (2009), where the Court held that Powell did not extend to the situation where a jury returned a verdict of acquittal on one count and hung on another count and prosecutors attempted to retry on the hung count. Id. at 124. Because the jury “speaks only though its verdict,” a hung count did not reveal anything about the jury’s reasoning and only the acquittal could factor into the issue preclusion analysis. Id. at 122. Unlike in Yeager, the acquittals in Bravo-Fernandez were accompanied with inconsistent guilty verdicts, leading the Court to conclude that the criminal defendants could not demonstrate that the jury had actually decided the underlying issue at the second trial. See Bravo-Fernandez, No. 15-537, slip op. at 15–16.
17: See Bravo-Fernandez, No. 15-537, slip op. at 16 (noting that the earlier acquittals “remain inviolate” ).