Published on: Monday, June 25, 2018

On Friday, the Supreme Court in Currier v. Virginia, No. 16-1348, issued a fractured opinion on double jeopardy. Currier was indicted for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. Because the state could introduce evidence of Currier’s prior burglary and larceny convictions to prove the -felon-in-possession charge, Currier and the state agreed to a severance of the charges, with the burglary and larceny charges to be tried first. Currier was acquitted in the first trial. Currier then sought to halt the second trial, arguing that it would amount to double jeopardy. Currier alternatively asked the trial court to prohibit the state from relitigating at the second trial any issue resolved in his favor at the first trial. The trial court denied both requests and a jury convicted him on the felon-in-possession charge.

Justice Gorsuch, joined by Roberts, Kennedy, Thomas, and Alito delivered the opinion on the court.  The Court agreed that because Currier consented to have the charges tried separately, his conviction on the felon-in-possession charge did not violate the Double Jeopardy Clause. The Court held that consenting to multiple trials waives not only the protection against multiple trials but also the protection against relitigation of an issue following an acquittal. A plurality of the Court (Gorsuch, Roberts, Thomas, and Alito) questioned whether relitigating an issue after acquittal could violate double jeopardy at all. Justice Ginsburg filed a dissenting opinion, joined by Breyer, Sotomayor, and Kagan.

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