Ashe v. Swenson
In Ashe v. Swenson, 397 U. S. 436 (1970), several armed and masked men broke into a home and robbed six men who were playing poker. 397 U.S. at 437-39.
The defendant was acquitted at his first trial for the robbery of one of the victims, but was subsequently convicted in a second trial for the robbery of another poker player. Id.
At both trials, the evidence that an armed robbery had occurred was "unassailable," id at 438, and the Supreme Court determined that the "single rationally conceivable issue in dispute before the jury was whether the defendant had been one of the robbers." Id. at 445.
In reversing the defendant's conviction, the Court held that the State was barred by the Double Jeopardy Clause from litigating the issue of identity at the second trial after a prior judgment acquitting the defendant based on that same issue. Id. at 445.
The Supreme Court noted that the defendant's reprosecution was not barred by double jeopardy under the usual Blockburger test because the second prosecution was for a different offense, namely the robbery of a different victim attending the same poker party.
In Ashe v. Swenson, the Supreme Court stated that collateral estoppel "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."
To determine whether collateral estoppel bars a subsequent prosecution (or permits prosecution but bars relitigation of certain specific facts) courts employ a two-step analysis. Courts must determine:
(1) exactly what facts were "necessarily decided" in the first proceeding; and
(2) whether those "necessarily decided" facts constitute essential elements of the offense in the second trial. (Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998)).
In Ashe v. Swenson, the Supreme Court emphasized that:
the rule of collateral estoppel is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. ...
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.
In Ashe v. Swenson, collateral estoppel applied because, "The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers." 397 U.S. 436, 445 (1970).
If a jury could rationally conclude that appellant acted under the influence of sudden passion as to the victim in the first prosecution but not as to the victim in the second, then double jeopardy-collateral estoppel would not bar litigation on the sudden passion issue in the second trial.
For example, if appellant had been prosecuted in the first trial for the murder of the first victim, then in the second trial for the murder of the second victim, the State might have been able to claim that appellant had "cooled off" and was no longer under the influence of sudden passion when the second victim was killed.
The actual circumstances present here are that the second killing was prosecuted first.
To show a different factual basis, the State would likely have to prove that the defendant's emotional state escalated between the killings so that appellant was capable of cool reflection when he killed the first victim but became incapable of cool reflection when he killed the second.
That could be a much harder sell than the cooling off scenario, but it is a possibility nonetheless, and we cannot determine on this record that collateral estoppel would bar consideration of sudden passion relating to the second victim.
The defendant and several others were accused of robbing several poker players during the same transaction. See Ashe, 90 S. Ct. at 1195-96.
A jury found the defendant "not guilty due to sufficient evidence" in the defendant's first prosecution for robbing poker player A. See id.
The Supreme Court decided that the jury necessarily determined by this verdict that the defendant "was not one of the robbers" so the rule of collateral estoppel "as embodied in the Fifth Amendment guarantee against double jeopardy" prohibited the defendant's subsequent prosecution for robbing poker player B. See id.
Under Ashe v. Swenson, an appellate court must review the entire testimonial record in the first proceeding to determine precisely what specific facts were actually decided and whether the resolution of those facts necessarily forecloses further proceedings.
Without that record, appellant cannot even reach first base.
The Supreme Court ruled that estoppel applied to ultimate facts. That case involved a defendant who was acquitted in a prior trial of robbery involving one of several participants in a poker game. Since there was no dispute that the robbery had occurred, the jury's verdict necessarily determined that defendant was not present at the time of the crime.
The Supreme Court held that the finding of this ultimate fact foreclosed the government from subsequently trying the earlier acquitted defendant for the robbery of another of the poker players. In the present case, defendant does not contend that the acquittal of forcible rape bars the physically helpless rape, but rather reasons that the first acquittal bars not only the reprosecution of ultimate facts but also prevents the introduction of evidentiary facts necessarily established by the defendant in his earlier trial.
The United States Supreme Court held that the doctrine of collateral estoppel is embodied in the guarantee against double jeopardy.
The Supreme Court explained that collateral estoppel "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."
Accordingly, the Court held that a defendant who had been acquitted of robbing one of six poker players during a game could not be prosecuted subsequently for robbing another player, given that the only issue in dispute in the first trial was the defendant's identity. Id. at 445.