Ashe v. Swenson

Mr. Justice STEWART delivered the opinion of the Court.

In Benton v. Maryland, . . . 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 in the circumstances here presented.

Sometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee's Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. The robbers-and it has never been clear whether there were three or four of them-then fled in a car belonging to one of the victims of the robbery. Shortly thereafter the stolen car was discovered in a field, and later that morning three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away.

The four were subsequently charged with seven separate offenses-the armed robbery of each of the six poker players and the theft of the car. In May 1960 the petitioner went to trial on the charge of robbing Donald Knight, one of the participants in the poker game. At the trial the State called Knight and three of his fellow poker players as prosecution witnesses. Each of them described the circumstances of the holdup and itemized his own individual losses. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State's evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner's uncle by marriage, said that at the ‘patrol station’ he had positively identified each of the other three men accused of the holdup, but could say only that the petitioner's voice ‘sounded very much like’ that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his ‘size and height, and his actions.’

The cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testimony regarding the holdup itself or their claims as to their losses. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony and waived final argument.

The trial judge instructed the jury that if it found that the petitioner was one of the participants in the armed robbery, the theft of ‘any money’ from Knight would sustain a conviction. He also instructed the jury that if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed Knight. The jury-though not instructed to elaborate upon its verdict-found the petitioner ‘not guilty due to insufficient evidence.’

Six weeks later the petitioner was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. The witnesses were for the most part the same, though this time their testimony was substantially stronger on the issue of the petitioner's identity. For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary.

The Supreme Court of Missouri affirmed the conviction, holding that the ‘plea of former jeopardy must be denied.’ . . . A collateral attack upon the conviction in the state courts five years later was also unsuccessful. . . . The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. Considering itself bound by this court's decision in Hoag v. New Jersey, . . . the District Court denied the writ, although apparently finding merit in the petitioner's claim. The Court of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey, supra. We granted certiorari to consider the important constitutional question this case presents. . . .

As the District Court and the Court of Appeals correctly noted, the operative facts here are virtually identical to those of Hoag v. New Jersey, supra. In that case the defendant was tried for the armed robbery of three men who, along with others, had been held up in a tavern. The proof of the robbery was clear, but the evidence identifying the defendant as one of the robbers was weak, and the defendant interposed an alibi defense. The jury brought in a verdict of not guilty. The defendant was then brought to trial again, on an indictment charging the robbery of a fourth victim of the tavern holdup. This time the jury found him guilty. After appeals in the state courts proved unsuccessful, Hoag brought his case here.

Viewing the question presented solely in terms of Fourteenth Amendment due process-whether the course that New Jersey had pursued had ‘led to fundamental unfairness,’ . . . this Court declined to reverse the judgment of conviction, because ‘in the circumstances shown by this record, we cannot say that petitioner's later prosecution and conviction violated due process.'. . . The Court found it unnecessary to decide whether ‘collateral estoppel’-the principle that bars relitigation between the same parties of issues actually determined at a previous trial-is a due process requirement in a state criminal trial, since it accepted New Jersey's determination that the petitioner's previous acquittal did not in any event give rise to such an estoppel. . . . And in the view the Court took of the issues presented, it did not, of course, even approach consideration of whether collateral estoppel is an ingredient of the Fifth Amendment guarantee against double jeopardy.

The doctrine of Benton v. Maryland, . . . puts the issues in the present case in a perspective quite different from that in which the issues were perceived in Hoag v. New Jersey, Supra. The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part 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, . . . As Mr. Justice Holmes put the matter in that case, ‘It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.’ . . . As a rule of federal law, therefore, ‘(i)t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of ‘mutuality’ or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain.' . . .

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 the 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, supra, 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.

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Reversed and remanded.

The concurring opinions of Justices BLACK, HARLAN, BRENNAN, DOUGLAS and MARSHALL are omitted.

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Mr. Chief Justice BURGER, dissenting.

The Fifth Amendment to the Constitution of the United States provides in part: ‘nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .’ Nothing in the language or gloss previously placed on this provision of the Fifth Amendment remotely justifies the treatment that the Court today accords to the collateral-estoppel doctrine. Nothing in the purpose of the authors of the Constitution commands or even justifies what the Court decides today; this is truly a case of expanding a sound basic principle beyond the bounds-or needs-of of its rational and legitimate objectives to preclude harassment of an accused.

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The concept of double jeopardy and our firm constitutional commitment is against repeated trials ‘for the same offence.’ This Court, like most American jurisdictions, has expanded that part of the Constitution into a ‘same evidence’ test. For example, in Blockburger v. United States, . . . it was stated, so far as here relevant, that ‘the test to be applied to determine whether there are two offenses or only one is whether each provision (i.e., each charge) requires proof of a fact which the other does not.’ . . .

Clearly and beyond dispute the charge against Ashe in the second trial required proof of a fact-robbery of Roberts-which the charge involving Knight did not. The Court, therefore, has had to reach out far beyond the accepted offense-defining rule to reach its decision in this case. What it has done is to superimpose on the same-evidence test a new and novel collateral-estoppel gloss.

The majority rests its holding in part on a series of cases beginning with United States v. Oppenheimer, . . . which did not involve constitutional double jeopardy but applied collateral estoppel as developed in civil litigation to federal criminal prosecutions as a matter of this Court's supervisory power over the federal court system. The Court now finds the federal collateral estoppel rule to be an ‘ingredient’ of the Fifth Amendment guarantee against double jeopardy and applies it to the States through the Fourteenth Amendment. This is an ingredient that eluded judges and justices for nearly two centuries; the Court finds itself endowed with a perception all our predecessors lacked and in an area of the law which encounters no new facts.

The collateral-estoppel concept-originally a product only of civil litigation-is a strange mutant as it is transformed to control this criminal case. In civil cases the doctrine was justified as conserving judicial resources as well as those of the parties to the actions and additionally as providing the finality needed to plan for the future. It ordinarily applies to parties on each side of the litigation who have the same interest as or who are identical with the parties in the initial litigation. Here the complainant in the second trial is not the same as in the first even though the State is a party in both cases. Very properly, in criminal cases, finality and conservation of private, public and judicial resources are lesser values than in civil litigation. Also, courts that have applied the collateral-estoppel concept to criminal actions would certainly not apply it to both parties, as is true in civil cases, i.e., here, if Ashe had been convicted at the first trial, presumably no court would then hold that he was thereby by foreclosed from litigating the identification issue at the second trial.

Perhaps, then, it comes as no surprise to find that the only expressed rationale for the majority's decision is that Ashe has ‘run the gantlet’ once before. This is not a doctrine of the law or legal reasoning but a colorful and graphic phrase, which, as used originally in an opinion of the Court written by Mr. Justice Black, was intended to mean something entirely different. The full phrase is ‘run the gantlet once on that charge . . . .’ (emphasis added); it is to be found in Green v. United States, . . . where no question of multiple crimes against multiple victims was involved. Green, having been found guilty of second degree murder on a charge of first degree, secured a new trial. This Court held nothing more than that Green, once put in jeopardy-once having ‘run the gantlet . . . on that charge’-of first degree murder, could not be compelled to defend against that charge again on retrial.

Today's step in this area of constitutional law ought not be taken on no more basis than casual reliance on the ‘gantlet’ phrase lifted out of the context in which it was originally used. This is decision by slogan.

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Finally, the majority's opinion tells us ‘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.’ . . .

With deference I am bound to pose the question: what is reasonable and rational about holding that an acquittal of Ashe for robbing Knight bars a trial for robbing Roberts? To borrow a phrase from the Court's opinion, what could conceivably be more ‘hypertechnical and archaic’ and more like the stilted formalisms of 17th and 18th century common-law England, than to stretch jeopardy for robbing Knight into jeopardy for robbing Roberts?

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