Charging and Joinder Stakes

Charging and Joinder Stakes

The earlier sections viewed collateral estoppel from the accused's side of the table. The doctrine also bears on a choice the prosecutor makes before any trial begins, which is whether to try related charges together or one at a time. Prosecutors usually want as much joinder as they can get, and defendants usually want separate trials, but the preferences can reverse: a prosecutor may want the option of several trials, while the defendant prefers a prompt, unified disposition or a bar to any later related prosecution.¹ When the State chooses to split, double jeopardy can cost it the later charges through two different doctrines, and how far that risk extends depends on what the Court decided in Ashe v. Swenson.² This section takes the two hazards first, then the limit on what Ashe held, and finally the setting in which the accused rather than the State causes the split.

Two Separate Hazards

A prosecutor who is thinking about leaving related offenses out of the first trial has to weigh two double jeopardy doctrines, the same-offense doctrine and collateral estoppel.³ The Double Jeopardy Clause bars multiple prosecutions for the same offense, and two crimes can count as the same offense even when their elements are not identical, so the prosecutor must either join the charges in one prosecution or give up the one left out.⁴ A narrow exception applies where the State could not proceed on the greater charge at the outset because the facts needed for it had not yet occurred or had not been discovered despite due diligence, which is why an assault conviction did not bar a later murder charge in Diaz v. United States, where the victim died after the first case ended.⁵ The test for sameness is taught separately. What matters here is that this hazard is triggered by comparing the two charges with each other.

Collateral estoppel starts from a different place, because it asks what the first jury decided and ignores whether the charges are the same offense. An acquittal bars a later prosecution if the first verdict resolved in the defendant's favor an ultimate issue of fact that is a necessary element of the State's case in the second prosecution.⁶ In Ashe the State charged the defendant with seven separate offenses, a robbery of each of six poker players plus the theft of a car, and tried the robbery of Knight first.⁷ The occurrence of the robbery was unquestioned and the only genuine dispute was whether Ashe was one of the robbers, so the not-guilty verdict necessarily decided identity in his favor, and the State could not try him for robbing Roberts.⁸ The robbery counts were distinct charges with different victims, yet the identity finding carried over from one to the other. A prosecutor therefore cannot treat the absence of a same-offense problem as the end of the double jeopardy inquiry.

The reason for the bar is visible in the facts of Ashe. Trying the weakest count first gives the State a rehearsal, and the prosecutor in that case conceded that the first trial had been treated as no more than a dry run for the second.⁹ The witnesses at the second trial were largely the same people, but their identifications of Ashe were now more certain.¹⁰ Preclusion takes away the reward for that strategy on the one issue the first jury actually resolved, so a prosecutor whose counts all turn on a single contested fact, such as identity, has a reason to try them together.

The hazard is real only when the first verdict can be read as resolving the shared fact. Most trials end in general verdicts, so a reviewing court usually cannot tell what the jury necessarily found, and the practical scope of the doctrine is narrow.¹¹ Ashe itself would have come out differently on a slightly different record: had the defense also contested whether the first victim surrendered anything of value to the robbers, the acquittal could have rested on that ground rather than on the defendant's absence from the scene, and the prosecutor probably would not have been estopped from trying the second robbery.¹² The only variable that changed is the number of rational grounds on which the first verdict could rest, one in Ashe as decided and two in the altered version, and that variable decides whether the later count survives.

No General Same-Transaction Rule

Because a split prosecution cost the State its second case in Ashe, the decision can look like a compulsory-joinder rule, but the Court did not adopt one. Justice Brennan, concurring, would have gone further and required the State to join in a single trial all the charges arising from one criminal transaction.¹⁴ The majority did not take that step, and Justice Harlan, concurring, stated expressly that the Court's opinion did not embrace the same-transaction view.¹⁵

The two approaches differ in what they ask. A same-transaction rule would bar a later prosecution because the charges grew out of one event, whatever the first jury decided. Collateral estoppel bars a later charge only to the extent that the first verdict resolved a fact the later charge needs. A prosecutor who tries one count of a multi-count episode and loses on a general verdict that could rest on more than one ground therefore remains free to bring the others, because the record does not show that the shared fact was decided.¹⁶ Students lose points on this issue by treating arising from the same transaction as enough to bar a second prosecution, when the question is always what the first verdict necessarily resolved, or whether the later charge is the same offense.

Severance the Defendant Requests

Both hazards assume that the State controls the sequence of trials. When the accused is responsible for splitting the charges, the protection is lost, whether the claim rests on the same-offense prohibition or on collateral estoppel.¹⁸ In Jeffers v. United States the defense successfully opposed the government's motion to consolidate, and that choice cost the defendant the bar that the split would otherwise have produced.¹⁹ Currier v. Virginia carried the same idea into Ashe itself. The defendant there was charged with burglary, grand larceny, and unlawful possession of a firearm by a convicted felon, and the government agreed to his request that the firearm charge be severed and tried last. After an acquittal at the first trial, he sought to stop the second on double jeopardy grounds and failed, because five Justices reasoned that if a defendant's consent to two trials can overcome concerns at the historic core of the Double Jeopardy Clause, it must also overcome a complaint under Ashe, and nothing in Jeffers suggests a different result when the first trial ends in acquittal.²⁰

The reason follows from what the bar protects. Ashe shields an acquitted defendant from being put through a second trial at the State's initiative. A defendant who asked for separate trials chose the sequence, so the State's pursuit of the later trial is not the repeated attempt the bar guards against. Applying Ashe anyway would let the accused request a split, win an acquittal at the first trial, and then invoke that acquittal against the remaining charges, an advantage obtained through the defendant's own request.

The two versions differ only in who caused the split, and that is the fact that moves the answer.²¹