On Point blog, page 2 of 2
SCOTUS holds that agreeing to severance of interrelated counts waives issue-preclusion bar to second trial
Currier v. Virginia, USSC No. 16-1348, 2018 WL 3073763, June 22, 2018, affirming State v. Currier, 779 S.E.2d 834 (Va. App. 2015), reasoning adopted by 798 S.E.2d 164 (Va. 2016); Scotusblog page (includes links to briefs and commentary)
A defendant who agrees to have overlapping charges considered in two separate trials cannot invoke the doctrine of issue preclusion adopted in Ashe v. Swenson, 397 U.S. 436 (1970), and argue that an acquittal in the first trial bars a second trial on the remaining charges.
SCOTUS will decide whether agreeing to severance means giving up issue preclusion
Currier v. Virginia, USSC No. 16-1348, certiorari granted 10/16/17
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.
Juan Bravo-Fernandez v. United States, USSC No. 15-537, cert. granted 3/28/16
Whether, under Ashe v. Swenson, 397 U.S. 436 (1970), and Yeager v. United States, 557 U.S. 110 (2009), a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause?
SCOTUS reaffirms bright-line rule that jeopardy attaches when the jury is sworn
Esteban Martinez v. Illinois, USSC No. 13-5367 (May 27, 2014) (per curiam), reversing State v. Martinez, 990 N.E.2d 215 (Ill. 2013)
In this unanimous per curiam decision, the Supreme Court reaffirms two clear rules of criminal procedure: jeopardy attaches when the jury is impaneled and sworn; and a trial court’s dismissal of the case due to insufficient evidence is an acquittal. Added together, the two rules mean the defendant cannot be retried.
Double jeopardy bars retrial where judge directed verdict based on erroneous view that state failed to prove an element that was not really an element
Evans v. Michigan, USSC No. 11-1327, 2/20/13
United States Supreme Court decision, reversing People v. Evans, 491 Mich. 1, 810 N.W.2d 535 (2012)
A trial judge entered a directed verdict of acquittal in favor of Evans after concluding the state had not provided sufficient evidence of a particular element of the offense. A state appellate court later ruled that the unproven “element” was not actually an element at all and thus ordered a retrial.
Double Jeopardy – Successive Prosecutions: “Statutory Double Jeopardy,” § 939.71 – Conviction of Lesser Offense as Bar to Homicide Prosecution following Victim’s Subsequent Death
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
Issue/Holding: “(T)he prohibition against double jeopardy does not bar a prosecution for murder when the victim of an ‘assault and battery’ dies after a defendant has been convicted of the lesser offense. Diaz v. United States, 223 U.S. 442 (1912),” ¶6.
Double Jeopardy – Successive Prosecutions
State v. Prokopios G. Vassos, 218 Wis.2d 330, 579 N.W.2d 35 (1998), on certification
For Vassos: Edmund C. Carns
Holding: Successive prosecution for misdemeanor battery (§ 940.19(1)), following acquittal of felony battery (§ 940.19(3)) arising from same incident, wasn’t barred by double jeopardy. Successive prosecutions are barred under § 939.71 when the subsequent charge is the “same” offense under the “elements-only” test. That test isn’t met here,