Ashe v. Swenson

397 U.S. 436

Case Year: 1970

Case Ruling: 7-1, Reversed and Remanded

Opinion Justice: Stewart

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Black, Brennan, Douglas, Harlan, Marshall, White


1st Concurring Opinion

Author: Blackmun, Powell


1st Dissenting Opinion

Author: Burger


2nd Concurring Opinion

Author: Harlan


2nd Dissenting Opinion



3rd Concurring Opinion

Author: Brennan

Joiner(s): Douglas, Marshall

3rd Dissenting Opinion



Other Concurring Opinions:


In January 1960 several masked individuals broke into John Gladson's house and robbed him and the five friends with whom he was playing poker. The robbers also stole one of the players' cars to make their getaway. 'Police found the car abandoned and three of the alleged robbers nearby. A fourth suspect was located "some distance away."

Several months later, the state brought one of the suspects, Ashe, to trial for robbing one of the poker players, Knight. The jury found Ashe not guilty due to insufficient evidence. Six weeks later, the state brought Ashe to trial again, charging him with the same crime, but against Roberts, another poker player. This time the state succeeded--the jury found Ashe guilty as charged. Among other claims, Ashe argued that this second trial violated his double jeopardy guarantee.



In Benton v. Maryland [1969] the Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. The question in this case is whether the State of Missouri violated that guarantee when it prosecuted the petitioner a second time for armed robbery....

...The question is ... whether collateral estoppel is a requirement ... of the Fifth Amendment's guarantee against double jeopardy. And if collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad bounds of "fundamental fairness," but a matter of constitutional fact we must decide through an examination of the entire record....

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply 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. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer.... The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." The inquiry "must be set in a practical frame and viewed with an eye to all circumstances of the proceedings."... Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal. Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.

The ultimate question to be determined, then, in the light of Benton v. Maryland, is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is. 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 question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.

After the first jury had acquitted the petitioner of robbing Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of Knight in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers. In this case the State in its brief has frankly conceded that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution: "No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would do--he refined his presentation in light of the turn of events at the first trial." But this is precisely what the constitutional guarantee forbids.

The judgment is reversed, and the case is remanded to the Court of Appeals for the Eighth Circuit for further proceedings consistent with this opinion.

It is so ordered.

Reversed and remanded.