# Ashe v. Swenson/Concurrence Brennan

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United States Supreme Court
397 U.S. 436
Ashe v. Swenson
Argued: Nov. 13, 1969. --- Decided: April 6, 1970
Mr. Justice BRENNAN, whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, concurring.
I agree that the Double Jeopardy Clause incorporates collateral estoppel as a constitutional requirement and therefore join the Court's opinion. However, even if the rule of collateral estoppel had been inapplicable to the facts of this case, it is my view that the Double Jeopardy Clause nevertheless bars the prosecution of petitioner a second time for armed robbery. The two prosecutions, the first for the robbery of Knight and the second for the robbery of Roberts, grew out of one criminal episode, and threfore I think it clear on the facts of this case that the Double Jeopardy Clause prohibited Missouri from prosecuting petitioner for each robbery at a different trial. Abbate v. United States, 359 U.S. 187, 196-201, 79 S.Ct. 666, 671 674, 3 L.Ed.2d 729 (1959) (separate opinion).
My conclusion is not precluded by the Court's decision in Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), although the basic fact situation there was identical to that in this case. Three armed men entered a tavern and robbed five customers. Hoag was tried and acquitted under indictments for robbing three of the customers. He was then brought to trial under a fourth indictment, the same as the first three in all respects except that it named a fourth customer as the victim. This time Hoag was convicted. The New Jersey courts, in rejecting Hoag's double-jeopardy claim, construed the applicable New Jersey statute as making each of the four robberies, although taking place on the same occasion, a separate offense. This construction was consistent with the state courts' view that a claim of double jeopardy cannot be upheld unless the same evidence necessary to sustain a second indictment would have been sufficient to secure a conviction on the first. The issues differed only in the identifications of the victims and the property taken from each; otherwise the State's evidence covered the same ground at both trials. This Court stated that it was unable to hold that the Due Process Clause of the Fourteenth Amendment 'always prevents a State from allowing different offenses arising out of the same act or transaction to be prosecuted separately, as New Jersey has done. For it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.' 356 U.S., at 468, 78 S.Ct. at 833. But in the present case Missouri did not have 'the widest latitude,' because Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), decided after Hoag, held that the Fifth Amendment guarantee that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb' is enforceable against the States, and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), accorded fully retroactive effect to that holding. This means, under our decisions, that federal standards as to what constitutes then 'same offence' apply alike to federal and state proceedings; it would be incongruous to have different standards determine the validity of a claim of double jeopardy depending on whether the claim was asserted in a state or federal court. Cf. Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964).
The Double Jeopardy Clause is a guarantee 'that the State with all its resources and power (shall) not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity * * *.' Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). This guarantee is expressed as a prohibition against multiple prosecutions for the 'same offence.' Although the phrase 'same offence' appeared in most of the early common-law articulations of the double-jeopardy principle, questions of its precise meaning rarely arose prior to the 18th century, and by the time the Bill of Rights was adopted it had not been authoritatively defined.
When the common law did finally attempt a definition, in The King v. Vandercomb, 2 Leach 708, 720, 168 Eng.Rep. 455, 461 (Crown 1796), it adopted the 'same evidence' test, which provided little protection from multiple prosecution:
'(U)nless the first indictment were such as the prisoner might have been convicted upon by rpoof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.'
The 'same evidence' test of 'same offence' was soon followed by a majority of American jurisdictions, but its deficiencies are obvious. It does not enforce but virtually annuls the constitutional guarantee. For example, where a single criminal episode involves several victims, under the 'same evidence' test a separate prosecution may be brought as to each. E.g., State v. Hoag, 21 N.J. 496, 122 A.2d 628, (1956), aff'd, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958). The 'same evidence' test permits multiple prosecutions where a single transaction is divisible into chronologically discrete crimes. E.g., Johnson v. Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each of 75 poker hands a separate 'offense'). Even a single criminal act may lead to multiple prosecutions if it is viewed from the perspectives of different statutes. E.g., State v. Elder, 65 Ind. 282 (1879). Given the tendency of modern criminal legislation to divide the phrases of a criminal transaction into numerous separate crimes, the opportunities for multiple prosecutions for an esentially unitary criminal episode are frightening. And given our tradition of virtually unreviewable prosecutorial discretion concerning the initiation and scope of a criminal prosecution, the potentialities for abuse inherent in the 'same evidence' test are simply intolerable.
The 'same evidence' test is not constitutionally required. It was first expounded after the adoption of the Fifth Amendment, and, as shown in Abbate v. United States, supra, 359 U.S. at 197 198 and n. 2, 79 S.Ct. 666, 671-673, has never been squarely held by this Court to be the required construction of the constitutional phrase 'same offence' in a case involving multiple trials; indeed, in that context it has been rejected. See In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), discussed in Abbate v. United States, supra, 359 U.S. at 201, 79 S.Ct. 674. The 'same evidence' test may once have been defensible at English common law, which, for reasons peculiar to English criminal procedure, severely restricted the power of prosecutors to combine several charges in a single trial. In vivid contrast, American criminal procedure generally allows a prosecutor freedom, subject to judicial control, to prosecute a person at one trial for all the crimes arising out of a single criminal transaction.
In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This 'same transaction' test of 'same offence' not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience. Modern rules of criminal and civil procedure reflect this recognition. See United Mine Workers v. Gibbs, 383 U.S. 715, 724-726, 86 S.Ct. 1130, 1137-1139, 16 L.Ed.2d 218 (1966). Although in 1935 the American Law Institute adopted the 'same evidence' test, it has since replaced it with the 'same transaction' test. England, too, has abandoned its surviving rules against joinder of charges and has adopted the 'same transaction' test. The Federal Rules of Criminal Procedure liberally encourage the joining of parties and charges in a single trial. Rule 8(a) provides for joinder of charges that are similar in character, or arise from the same transaction or from connected transactions or form part of a common scheme or plan. Rule 8(b) provides for joinder of defendants. Rule 13 provides for joinder of separate indictments or informations in a single trial where the offenses alleged could have been included in one indictment or information. These rules represent considered modern thought concerning the proper structuring of criminal litigation.
The same thought is reflected in the Federal Rules of Civil Procedure. A pervasive purpose of those Rules is to require or encourage the consolidation of related claims in a single lawsuit. Rule 13 makes compulsory (upon pain of a bar) all counterclaims arising out of the same transaction or occurrence from which the plaintiff's claim arose. Rule 14 extends this compulsion to third-party defendants. Rule 18 permits very broad joinder of claims, counterclaims, cross-claims, and third-party claims. Rules 19, 20, and 24 provide for joinder of parties and intervention by parties having claims related to the subject matter of the action. Rule 23 permits the consolidation of separate claims in a class action; see particularly Rule 23(b)(3).
In addition, principles of res judicata and collateral estoppel caution the civil plaintiff against splitting his case. The doctrine of pendent jurisdiction has furthered single trials of related cases. See United Mine Workers v. Gibbs, supra. Moreover, we have recognized the jurisdiction of three-judge courts to hear statutory claims pendent to the constitutional claim that required their convening. See, e.g., United States v. Georgia Pub. Serv. Comm., 371 U.S. 285, 287-288, 83 S.Ct. 397, 398 399, 9 L.Ed.2d 317 (1963); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).
It is true that these developments have not been of a constitutional dimension, and that many of them are permissive and discretionary rather than mandatory. Flexibility in the rules governing the structure of civil litigation is appropriate in order to give the parties the opportunity to shape their own private lawsuits, provided that injustice, harassment, or an undue burden on the courts does not result. Some flexibility in the structuring of criminal litigation is also desirable and consistent with our traditions. But the Double Jeopardy Clause stands as a constitutional barrier against possible tyranny by the overzealous prosecutor. The considerations of justice, economy, and convenience that have propelled the movement for consolidation of civil cases apply with even greater force in the criminal context because of the constitutional principle that no man shall be vexed more than once by trial for the same offense. Yet, if the Double Jeopardy Clause were interpreted by this Court to incorporate the 'same evidence' test, criminal defendants would have less protection from multiple trials than civil defendants. This anomaly would be intolerable. It was condemned by a New Jersey court nearly a century and a half ago in words even more applicable today:
'If in civil cases, the law abhors a multiplicity of suits, it is yet more watchful in criminal cases, that the crown shall not oppress the subject, or the government the citizen, by unnecessary prosecutions. * * * (This) is a case where the state has thought proper to prosecute the offence in its mildest form, and it is better that the residue of the offence go unpunished, than by sustaining a second indictment to sanction a practice which might be rendered an instrument of oppression to the citizen.' State v. Cooper, 13 N.J.L. 361, 375-376 (1833).
The present case highlights the hazards of abuse of the criminal process inherent in the 'same evidence' test and demonstrates the necessity for the 'same transaction' test. The robbery of the poker game involved six players-Gladson, Knight, Freeman, Goodwin, McClendon, and Roberts. The robbers also stole a car. Seven separate informations were filed against the petitioner, one covering each of the robbery victims, and the seventh covering the theft of the car. Petitioner's first trial was under the information charging the robbery of Knight. Since Missouri has offered no justification for not trying the other informations at that trial, it is reasonable to infer that the other informations were held in reserve to be tried if the State failed to obtain a conviction on the charge of robbing Knight. Indeed, the State virtually concedes as much since it argues that the 'same evidence' test is consistent with such an exercise of prosecutorial discretion.
Four of the robbery victims testified at the trial. Their testimony conflicted as to whether there were three or four robbers. Gladson testified that he saw four robbers, but could identify only one, a man named Brown. McClendon testified that he saw only three men at any one time during the course of the robbery, and he positively identified Brown, Larson, and Johnson; he also thought he heard petitioner's voice during the robbery, but said he was not sure. Knight thought only three men participated in the robbery, and he could not identify anyone. Roberts said he saw four different men and he identified them as Brown, Larson, Johnson, and petitioner. Under cross-examination, he conceded that he did not recognize petitioner's voice, and that he did not see his face or his hands. He maintained that he could identify him by his 'size and height' even though all the robbers had worn outsized clothing, and even though he could not connect petitioner with the actions of any of the robbers. On this evidence the jury acquitted petitioner.
At the second trial, for the robbery of Roberts, McClendon was not called as a witness. Gladson, who previously had been able to identify only one man-Brown-now was able to identify three Brown, Larson, and petitioner. On a number of details his memory was much more vivid than it had been at the first trial. Knight's testimony was substantially the same as at the first trial-he still was unable to identify any of the robbers. Roberts, who previously had identified petitioner only by his size and height, now identified him by his size, actions, voice, and a peculiar movement of his mouth. As might be expected, this far stronger identification evidence brought a virtually inevitable conviction.
The prosecution plainly organized its case for the second trial to provide the links missing in the chain of identification evidence that was offered at the first trial. McClendon, who was an unhelpful witness at the first trial was not called at the second trial. The hesitant and uncertain evidence of Gladson and Roberts at the first trial became detailed, positive, and expansive at the second trial. One must experience a sense of uneasiness with any double-jeopardy standard that would allow the State this second chance to plug up the holes in its case. The constitutional protection against double jeopardy is empty of meaning if the State may make 'repeated attempts' to touch up its case by forcing the accused to 'run the gantlet' at many times as there are victims of a single episode.
Fortunately for petitioner, the conviction at the second trial can be reversed under the doctrine or collateral estoppel, since the jury at the first trial clearly resolved in his favor the only contested issue at that trial, which was the identification of him as one of the robbers. There is at least doubt whether collateral estoppel would have aided him had the jury been required toresolve additional contested issues on conflicting evidence. But correction of the abuse of criminal process should not in any event be made to depend on the availability of collateral estoppel. Abuse of the criminal process is foremost among the feared evils that led to the inclusion of the Double Jeopardy Clause in the Bill of Rights. That evil will be most effectively avoided, and the Clause can thus best serve its worthy ends, if 'same offence' is construed to embody the 'same transaction' standard. Then both federal and state prosecutors will be prohibited from mounting successive prosecutions for offenses growing out of the same criminal episode, at least in the absence of a showing of unavoidable necessity for successive prosecutions in the particular case.

## Notes

* ↑ See, e.g., Vaux's Case, 4 Co.Rep. 44 a, 45 a, 76 Eng.Rep. 992, 993 (K.B. 1591); 2 M. Hale, Pleas of the Crown **240-255 ('same felony'); 2 W. Hawkins, Pleas of the Crown 515 (8th ed. 1824); 4 W. Blackstone, Commentaries *335.
* ↑ See generally J. Sigler, Double Jeopardy 1-37 (1969).
* ↑ See Baker, The Prosecutor-Initiation of Prosecution, 23 J.Crim.L. & C. 770 (1933); Baker & De Long, The Prosecuting Attorney-Powers and Duties in Criminal Prosecution, 24 J.Crim.L. & C. 1025 (1934); Kaplan, The Prosecutorial Discretion-A Comment, 60 N.W.U.L.Rev. 174 (1965); Note, Prosecutor's Discretion, 103 U.Pa.L.Rev. 1057 (1955); Note, Discretion Exercised by Montana County Attorneys in Criminal Prosecutions, 28 Mont.L.Rev. 41 (1966); Note, Prosecutorial Discretion in the Initiation of Criminal Complaints, 42 So.Cal.L.Rev. 519 (1969).
* ↑ Several subsidiary rules have been developed in attempts to eliminate anomalies resulting from the 'same evidence' test. Thus, where one offense is included in another, prosecution for one bars reprosecution for the other even though the evidence necessary to prove the two offenses is different. Similarly, doctrines of res judicata and collateral estoppel have provided some, though not very much, relief from the extreme permissiveness of the test. See generally Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513 (1949). Numerous practical exceptions to the test are discussed in Horack, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805 (1937). So many exceptions to the 'same evidence' rule have been found necessary that it is hardly a rule at all; yet the numerous exceptions have not succeeded in wholly preventing prosecutorial abuse.
* ↑ As Mr. Justice Frankfurter has said, 'Since the prohibition in the Constitution against double jeopardy is derived from history, its significance and scope must be determined, 'not simply by taking the words and a dictionary, but by considering (its) * * * origin and the line of (its) * * * growth." Green v. United States, supra, 355 U.S. at 199, 78 S.Ct. at 230 (dissenting opinion). The relation between the history of English criminal procedure and the history of the common law of double jeopardy is comprehensively examined in M. Friedland, Double Jeopardy (1969). See in particular pp. 161-194.
* ↑ See, e.g., Fed.Rules Crim.Proc. 8, 13, 14; Ill.Rev.Stat., c. 38, § 3-3 (1967); Ann., 59 A.L.R.2d 841 (1958).
* ↑ For example, where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the 'same transaction' rule should be made to permit a separate prosecution. See, e.g., Diaz v. United States, 223 U.S. 442, 448-449, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912). Cf. ALI, Model Penal Code, Proposed Official Draft §§ 1.07(2), 1.09(1)(b) (1962); Connelly v. D.P.P., (1964) A.C. 1254, 1360. Another exception would be necessary if no single court had jurisdiction of all the alleged crimes. An additional exception is discussed in n. 11, infra.
* ↑ Admittedly, the phrase 'same transaction' is not self-defining. Guidance for its application can be obtained from cases interpreting the phrase as it is used in the Federal Rules of Criminal Procedure. See in particular cases under Rule 8(a). Although analogies to the use of the phrase in civil litigation are not perfect since policy considerations differ, some further guidance for its application in the present context can be obtained from the course of its application in civil litigation, where the courts have not encountered great difficulty in reaching sound results in particular cases. See 3 J. Moore, Federal Practice 13.13 (1968); 1A W. Barron & A. Holtzoff, Federal Practice and Procedure § 394 (Wright ed. 1960). Additional guidance may be found in cases developing the standard of 'common nucleus of operative fact.' UMW v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138 (1966), for purposes of pendent jurisdiction. See generally Note, United Mine Workers v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657, 660-662 (1968).
* ↑ Compare ALI, Administration of the Criminal Law, Official Draft: Double Jeopardy § 5 (1935) with ALI, Model Penal Code, Proposed Official Draft §§ 1.07(2), 1.09(1)(b) (1962). See also Ill.Rev.Stat., c. 38, §§ 3-3, 3-4(b)(1) (1967).
* ↑ See Connelly v. D.P.P., (1964) A.C. 1254.
* ↑ Rule 14 provides for separate trials under court order where joinder would be prejudicial to either the prosecution or the defense. Cf. Fed.Rule Civ.Proc. 42. Even where separate trials are permitted to avoid prejudicial joinder, the 'same transaction' rule can serve a useful purpose since the defendant is at least informed at one time of all the charges on which he will actually be tried, and can prepare his defense accordingly. Moreover, the decision on whether charges are to be tried jointly or separately will rest with the judge rather than the prosecutor. And separate trials may not be ordered, of course, where the proofs will be repetitious, or the multiplicity of trials vexatious, or where the multiplicity will enable the prosecution to use the experience of the first trial to strengthen its case in a subsequent trial.
* ↑ Joinder of defendants, as distinguished from joinder of offenses, requires separate analysis. For example, joinder of defendants can lead to Sixth Amendment problems. See, e.g., Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
* ↑ And, of course, collateral estoppel would not prevent multiple prosecutions when the first trial ends in a verdict of guilty.
* ↑ The question of separate trials for different crimes committed during a single criminal transaction is entirely distinct from and independent of the question of prosecutorial discretion to select the charges on which a defendant shall be prosecuted; and, as explained in my separate opinion in Abbate, supra, 359 U.S. at 198-199, 79 S.Ct. at 672-673, it is also distinct from and independent of the question of the imposition of separate punishments for different crimes committed during a single transaction. The Double Jeopardy Clause does not limit the power the Congress and the States to split a single transaction into separate crimes so as to give the prosecution a choice of charges. Cf. Gore v. United States, 357 U.S. 386, 395, 78 S.Ct. 1280, 1285-1286, 2 L.Ed.2d 1405 (1958) (Douglas, J., dissenting). Moreover, the clause does not, as a general matter, prohibit the imposition at one trial of cumulative penalties for different crimes committed during one transaction. See my separate opinion in Abbate, supra. Thus no crime need go unpunished. However, the clause does provide an outer limit on the power of federal and state courts to impose cumulative punishments for a single criminal transaction. See Gore v. United States, supra, 357 U.S. at 397-398, 78 S.Ct. 1286-1287 (Brennan, J., dissenting).
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