Issues
Whether a criminal defendant with multiple charges on the same set of facts may be found guilty of a second charge when the second charge is severed from the first and the defendant is acquitted on the first charge?
Petitioner Michael Currier was charged with burglary, grand larceny, and possession of a firearm as a convicted felon. Currier and the prosecution agreed to sever the charges. At the first trial, a jury acquitted Currier of burglary and grand larceny. At the second trial, in which the prosecution introduced many of the same facts, the jury convicted Currier of possession of a firearm as a convicted felon. Michael Currier argues that issue preclusion bars the state from re-litigating an issue upon which the jury acquitted him in the first trial. Virginia contends that the defendant waived his right to issue preclusion when he consented to severing the criminal charges into successive trials. The Court’s determination on the scope of the Double Jeopardy Clause will have significant consequences for defendants charged with counts requiring evidence of prior criminal records and, more broadly, for national criminal procedure.
Questions as Framed for the Court by the Parties
Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue-preclusive effect of an acquittal.
Facts
In March 2012, a large gun safe, containing cash, personal papers, and twenty firearms, was stolen from a home in Virginia. A neighbor reported hearing loud noises coming from inside the home, and seeing an old, white pickup truck with an orange strip and at least two individuals inside leaving the driveway. The neighbor identified one of these individuals as the Petitioner, Michael Currier. Currier was also implicated by another suspect in the burglary.
Currier was arrested in October 2012. Shortly after, he was indicted by a grand jury on the charges of burglary, grand larceny, and possession of a firearm as a convicted felon.
Virginia, like many other states, requires that charges calling for proof of prior conviction must be severed from other charges that do not require such proof, unless the prosecution and defense agree otherwise. This requirement is meant to prevent evidence of prior crimes from causing prejudice to the defendant.
Currier and the prosecution agreed to sever the charge of possession of a firearm as a convicted felon from the other charges listed in the indictment. The prosecution first tried the charges of burglary and grand larceny. A jury acquitted Currier of both charges.
Following Currier’s acquittal, the prosecution tried Currier on the charge of possession of a firearm as a convicted felon. Currier objected to the charge, contending that the Fifth Amendment’s Double Jeopardy Clause precluded the prosecution’s charge of possession of a firearm as a convicted felon. Currier also argued that the Double Jeopardy Clause barred the prosecution from presenting any evidence of the burglary because a jury had already acquitted him of the burglary charges.
The circuit court found for the prosecution, holding that the state could try Currier for possession of a firearm as a convicted felon and could introduce evidence of the gun safe burglary. At trial, a jury convicted Currier of possession of a firearm as a convicted felon. Currier was sentenced to five years in prison. Currier filed a motion to set aside the jury’s verdict on the grounds that the Double Jeopardy Clause applied. The trial court denied this motion.
Currier appealed to the Virginia Court of Appeals, which affirmed the trial court’s denial of his motion. The Court of Appeals explained that the Double Jeopardy Clause was intended, among other things, to stop prosecutors from using second trials to bring evidence they had previously failed to produce. The Court asserted that the risk of such prosecutorial abuse was not present in trials concerning severed charges. Furthermore, the Court noted that the Supreme Court had refused to apply Double Jeopardy protections to stop prosecutors from pursuing severed charges. Therefore, the Court concluded the Double Jeopardy Clause was not applicable to Currier’s case. Additionally, the Court held that the gun safe burglary evidence was relevant, and its admission was not an abuse of discretion.
Currier appealed to the Virginia Supreme Court. In December 2016, the Virginia Supreme Court affirmed the Court of Appeals’ holding and adopted the Court of Appeals’ reasoning. Currier filed a petition for a writ of certiorari with the Supreme Court, which was granted in October 2017.
Analysis
DOUBLE JEOPARDY RIGHTS AND ISSUE PRECLUSION
Michael Currier argues that the Double Jeopardy Clause of the Fifth Amendment guarantees both the prohibition of trying the criminally accused multiple times for the same offense and the right to issue preclusion regarding acquittals. The Virginia Court of Appeals, according to Currier, incorrectly treated the prohibition of multiple trials and the right to issue preclusion as interchangeable when affirming his conviction, which constitutes reversible error. Currier contends that, while the prohibition of multiple trials pertains to the charges filed against an accused defendant, issue preclusion bars the government from re-litigating issues that a jury previously decided in the defendant’s favor. Currier notes that the prohibition of multiple trials applies to both convicted and acquitted defendants, while the right to issue preclusion applies only to acquitted defendants because it prohibits rearguing an issue that a prior jury rejected. Currier argues that even when a jury mistakenly acquits a defendant, the Double Jeopardy Clause insulates the acquittal from any subsequent changes. Currier contends that issue preclusion, unlike the prohibition of multiple trials, does not prevent the government from a later prosecution. Rather, Currier explains that issue preclusion permits a later prosecution so long as an acquitted defendant cannot show that the prior jury resolved an issue which the government must prove for a conviction.
Virginia counters that the right to issue preclusion and the prohibition of successive trials should not be treated differently under the Supreme Court’s double jeopardy jurisprudence. Virginia notes that, although the Double Jeopardy Clause was not originally construed to confer a right to issue preclusion, the Supreme Court included issue preclusion as part of the prohibition of successive trials. Virginia contends that issue preclusion is applied cautiously in criminal cases because the government is more constrained in criminal cases than in civil cases. Additionally, Virginia asserts that courts limit issue preclusion in criminal cases because juries can be unreliable, and the government is barred from appealing acquittals. While Virginia concedes that Currier cannot be retried for the charges on which he was acquitted, Virginia argues that the acquittals have no bearing on a separate trial on a different charge. Virginia further contends that, even if issue preclusion is appropriate, Currier cannot prove that the jury in the prior trial decided an issue of ultimate fact that the second trial also implicates, which is a requirement for issue preclusion.
ISSUE PRECLUSION AND CONSENT TO SEVER CRIMINAL CHARGES
Currier argues that a criminal defendant may invoke the right to issue preclusion whenever the government prosecutes him for a new charge relating to the same events that led to charges of which a jury acquitted him. The Virginia Court of Appeals and the Virginia Supreme Court, according to Currier, incorrectly held that a defendant may not consent to sever his criminal charges and then invoke his right to issue preclusion. Currier contends that a defendant who consents to severance—for his benefit or otherwise—does not waive the right to issue preclusion. Currier notes that Virginia incorrectly cites to United States v. Jeffers, which addresses the prohibition of multiple trials, but not issue preclusion. Two of the Justices in the Jeffers plurality, according to Currier, even recognized that issue preclusion would have applied had Jeffers been acquitted in the first trial. Currier further asserts that a defendant must knowingly waive each constitutional right and that waiving the prohibition of multiple trials does not also waive the right to issue preclusion. Currier argues that, even though he consented to severing the criminal charges into separate trials, he did not waive his right to issue preclusion. His waiver and his invocation of his right to issue preclusion, according to Currier, are not mutually exclusive actions.
Virginia argues that, when a criminal defendant waives the Double Jeopardy Clause’s prohibition of successive trials, they also waive their right to issue preclusion. Thus, Virginia contends that when Currier agreed to sever the charges against him, he waived his right to argue the issue preclusive effect of the prior acquittal in the subsequent trial. When a defendant’s actions result in the termination of the first trial for a reason unrelated to the adjudication of guilt, according to Virginia, a successive trial is not barred by the Double Jeopardy Clause. Similarly, Virginia notes that, when a defendant’s actions result in the state withholding a relevant charge in the first trial for reasons unrelated to guilt or innocence, the defendant cannot invoke issue preclusion in a successive trial. In Jeffers, Virginia asserts, the plurality held that the defendant’s constitutional rights were not violated when he requested that the prosecution try the two charges in separate trials. Virginia argues that the Jeffers concluded that the Double Jeopardy Clause did prohibit the successive trial. Virginia maintains that the analysis and reasoning by the Jeffers plurality applies to cases involving issue preclusion as well because “issue preclusion is simply one aspect of the double-jeopardy protection against successive prosecutions.” Virginia contends that, even if issue preclusion is not treated similarly to successive trials, Currier’s waiver still bars him from invoking issue preclusion because he knowingly took the risk of receiving inconsistent judgments.
PROSECUTORIAL OVERREACHING
Michael Currier argues that issue preclusion applies even if the prosecution does not overreach or act in bad faith when initiating a subsequent trial. Currier contends that the Supreme Court has reaffirmed this proposition in several cases, even as recently as 2009 in Yeager v. United States. The Yeager Court held that defendants may invoke their right to issue preclusion absent prosecutorial overreach because jury verdicts “represent the community’s collective judgment,” and the finality of acquittals is a “vitally important interest.” Currier then notes that the Virginia Court of Appeals incorrectly rested its decision on Ohio v. Johnson instead, which the Virginia Court of Appeals argued disallowed extending issue preclusion absent prosecutorial overreach. Currier asserts that Johnson is not applicable to his case because it involved the prohibition of multiple trials rather than the right to issue preclusion. Currier also contends that Johnson did not involve an acquittal and therefore did not implicate the interest of finality of judgment that is relevant in his case.
Virginia responds that protecting defendants from prosecutorial overreach—an important motivation for incorporating issue preclusion into Double Jeopardy Clause jurisprudence—weighs in favor of not applying issue preclusion to this case. Virginia contends that when a defendant’s own conduct affects how the charges are tried, prosecutorial overreach is foreclosed. Virginia asserts that Johnson held that issue preclusion does not apply, contrary to Currier’s characterization. Because Currier waived the prohibition of successive trials—including the right to issue preclusion—and the prosecution did not overreach, Virginia argues that issue preclusion cannot be applied to this case.
Discussion
PROSECUTORIAL MISCONDUCT & DEFENDANT PROTECTION
The Cato Institute, in support of Currier, argues that extending Double Jeopardy protections to situations with severed charges is necessary to protect defendants from having their cases illegitimately retried. The Cato Institute contends that a finding for the Commonwealth of Virginia will incentivize prosecutors to charge defendants with multiple counts, sever the counts, and then use the increased number of trials to increase their chances of conviction. The Cato Institute also asserts that a finding for Currier will best serve the community by protecting jury judgments from prosecutors, who would otherwise use their severance powers to circumvent jury acquittals. The National Association of Criminal Defense Lawyers (“NACDL”) adds that allowing prosecutors to repeatedly pursue defendants for alleged offenses will not only unfairly benefit prosecutors, but will also place defendants through unnecessary expense and stress.
Twenty states (“the States”), in support of the Commonwealth of Virginia, counter that a finding for Currier would discourage courts and prosecutors from taking steps to protect defendants from unfair prejudice arising from their prior criminal records. The States assert that the majority of charges that require proof of prior criminal history are often charged in tandem with other criminal counts. They contend that, while joining all charges—regardless of whether they require evidence of prior criminal history—would be cheaper and more efficient for prosecutors and courts, it is common across the country for criminal trials involving evidence of prior criminal history to take severance or bifurcation measures to reduce prejudice to defendants. measures generally mean having separate trials and separate juries for certain charges, whereas bifurcation measures generally mean having a single trial, but with different phases of adjudication. The States argue that a finding for Currier will discourage prosecutors and states from agreeing to such measures, thus leading to less protection for defendants with criminal records from jury prejudice.
A HOBSON’S CHOICE FOR DEFENDANTS?
NACDL, in support of Currier, contends that it is unfair to force defendants to choose between severing charges requiring evidence of prior criminal history and having their alleged offenses relitigated. NACDL asserts that, if defendants elect to join their charges, they will be unfairly prejudiced by having their prior convictions revealed to juries. NACDL notes that studies have shown jurors heavily weigh evidence of prior criminal acts, relying on such evidence as proof of criminal tendencies. On the other hand, NACDL posits that if defendants elect to sever their charges but an acquittal on the first set of charges does not carry issue preclusive effect for the second set of charges, they will be forced to waive their double jeopardy rights. NACDL maintains that requiring defendants to choose between these two outcomes would be an unconstitutional “Hobson’s Choice.”
The United States, in support of the Commonwealth of Virginia, counters that defendants must make difficult litigation decisions and should not be allowed to use the Double Jeopardy Clause to escape consequences of their own making. The United States explains that the Double Jeopardy Clause’s protections should not extend to defendants who voluntarily elect to have a second trial, as such defendants have alternative litigation options, such as having their charges joined and tried in a single proceeding. The States, in support of the Commonwealth of Virginia contend that the choice between suppressing evidence of prior crimes from a jury and having a second trial for severed charges is not unfair, as there is no due process right to have one’s criminal record obscured from the jury. To illustrate, the States cite to the ways in which prosecutors may introduce a defendant’s prior criminal record—for example, when such evidence is relevant to certain charges. The States claim that, if the Court finds for Currier, it will constitutionalize a new due process right to having one’s criminal record kept from a jury. This result, the States argue, would go beyond the Court’s powers and would unduly interfere with American criminal procedure.
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Acknowledgments
Additional Resources
- Robert Barnes, Supreme Court to Consider Major Digital Privacy Case on Microsoft Email Storage, Washington Post (Oct. 16, 2017).
- Dan McCue, Justices Agree to Hear Virginia Double Jeopardy Case, Courthouse News (Oct. 16, 2017).
- Akira Tomlinson, Supreme Court Takes Up Microsoft Data Privacy, American Express Antitrust Cases, Jurist (Oct. 16, 2017).