# Hoag v. New Jersey/Dissent Warren

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* Dissenting Opinions Warren Douglas
United States Supreme Court
356 U.S. 464
Hoag v. New Jersey
Argued: Nov. 19, 1957. --- Decided: May 19, 1958
Mr. Chief Justice WARREN, dissenting.
I think the undisputed facts disclosed by this record plainly show that the conviction of this petitioner has been obtained by use of a procedure inconsistent with the due process requirements of the Fourteenth Amendment. These are the facts: On Sept. 20, 1950, three armed men entered a tavern in Fairview, New Jersey, lined up five persons against a wall and robbed each of them. Petitioner alone was charged in three indictments with robbery of three of these five victims. The three indictments were joined for trial. At his trial, petitioner put only one fact in issue-whether or not he was one of the men who had committed the robbery. All five victims testified for the State on this issue. Three said petitioner was not the man; one said he could not swear that petitioner was the man; one made a positive identification of petitioner. Petitioner's sole defense was an alibi. He sought to establish his presence elsewher at the time of the robbery. The jury heard all the evidence, duly deliberated, and found petitioner not guilty. Thereafter, petitioner was indicted and tried for the robbery of victim number four. This time, only the victim who had identified petitioner as one of the robbers at the first trial was called by the State as a witness. The other four victims testified for the defense. All five testified substantially as at the first trial. Again, the only contested issue was whether petitioner was one of the three robbers. Again, petitioner testified that he was in New York City at the time of the robbery. This time the jury found petitioner guilty.
The issue is whether or not this determination of guilt, based as it is on the successive litigation of a single issue that had previously been resolved by a jury in petitioner's favor, is contrary to the requirements of fair procedure guaranteed by the Due Process Clause of the Fourteenth Amendment. The issue is not whether petitioner has technically committed five offenses, nor whether he could receive a total of five punishments had he been convicted in a single trial of robbing five victims.
Few would dispute that after the first jury had acquitted petitioner of robbing the first three victims, New Jersey could not have retried petitioner on the identical charge of robbing these same three persons. After a jury of 12 had heard the conflicting testimony of the five victims on the issue of the robber's identity and concluded that at least a reasonable doubt existed as to whether petitioner was one of the robbers, the same evidence could not be presented to 12 new jurors in the hope that they would come to a different conclusion. I fail to see how the unconstitutionality of that procedure is altered one whit by the fact that the new indictment, brought in this case after petitioner's acquittal, relates to a different victim of the same robbery. The name of the particular victim specified in the indictment has absolutely no bearing on the issue of the robber's identity. The vice of this procedure lies in relitigating the same issue on the same evidence before two different juries with a man's innocence or guilt at stake. This taints the second trial, whether the new indictment charges robbery of the same or different victims.
The Court finds it unnecessary to come to grips with this problem, because it elects to defer to the appraisal of the record made by a 4-3 majority of the New Jersey Supreme Court. That court concluded that the first trial raised issues other than identity of the robber, thus making it impossible to say that the jury's verdict of acquittal resolved the issue of identity favorably to petitioner. This Court now concludes that the state court's appraisal of the record was a resolution of the sort of 'factual issue' that is normally not open for reconsideration by this Court. But "issue of fact' is a coat of many colors.' Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801. In my view the issue posed here is not a 'fact issue' at all. The facts are clear and undisputed. The problem is to judge their legal significance. And since the claim of a denial of due process depends on an evaluation of the signifiance of these undisputed facts, the task of making that evaluation is inescapably the function of this Court. Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 328, 95 L.Ed. 267, 280; Watts v. State of Indiana, supra; Fay v. People of State of New York, 332 U.S. 261, 272, 67 S.Ct. 1613, 1619, 91 L.Ed. 2043.
Assessing the significance of a jury verdict in some criminal cases may involve, as the Court terms it, 'sheer speculation.' But the records of other trials are such as to indicate plainly, when 'viewed with an eye to all the circumstances of the proceedings,' Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180, that a jury verdict of acquittal is determinative of a particular issue that was contested at that trial. This Court unanimously found the record in Sealfon v. United States, supra, sufficient to justify such a conclusion. Cf. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534. Other courts have similarly evaluated trial records and come to the same conclusion in situations where, precisely as in the instant case, the sole contested issue was the identity of the criminal. United States v. De Angelo, 3 Cir., 138 F.2d 466; Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 980; People v. Grzesczak, 77 Misc. 202, 137 N.Y.S. 538. Of course, such a review of the record cannot tell us in fact what was in the mind of each juror. This we would not know even if the issue of the robber's identity in this case had been submitted to the jury as a special interrogatory, for an answer in petitioner's favor might reflect a wide assortment of 'facts' believed by each juror. But because a court cannot say with certainty what was in the mind of each juror is no reason for declining to examine a record to determine the manifest legal significance of a jury's verdict.
Evaluating the record in this case requires no speculation. The only contested issue was whether petitioner was one of the robbers. The proof of the elements of the crime of robbery was overwhelming and was not challenged. The suggestion that the jury might have acquitted because of a failure of proof that property was taken from the victims is simply unrealistic. The guarantee of a constitutional right should not be denied by such an artificial approach. The first jury's verdict of acquittal is merely an illusion of justice if its legal significance is not a determination that there was at least a reasonable doubt whether petitioner was present at the scene of the robbery.
The Court's effort to enlist Brock v. State of North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456, in aid of the conclusions reached is, in my view, entirely unwarranted. In that case a trial was halted before completion when two state witnesses unexpectedly invoked their privilege against self-incrimination and declined to testify. Upon a motion by the prosecutor, a mistrial was declared. On retrial, the defendant was convicted, and this Court affirmed. Whatever view one might take of the correctness of that decision, its holding should not be expanded to cover the situation here. The obvious difference between that case and this is that Brock does not involve determination of the same issue by two different juries. At the first Brock trial, the case never went to the jury. Here, however, the prosecution did not ask for a mistrial when its own witnesses failed to give expected testimony. Instead, the State proceeded to the conclusion of the trial, and the issue of guilt, which turned solely on the issue of identity, went to the jury. The verdict was in petitioner's favor. The trial was free of error. To convict petitioner by litigating this issue again before 12 different jurors is to employ a procedure that fails to meet the standard required by the Fourteenth Amendment.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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