397 U.S. 436 (1970)
In the early morning hours of January 10, 1960, six men were playing poker in the basement of John Gladson's home in Lee's Summit, Missouri, when three or four masked men armed with a shotgun and pistols broke in and robbed each player of money and personal property before fleeing in a car belonging to one of the victims.1
Shortly afterward the stolen car was found abandoned in a field, and four men including petitioner Bob Fred Ashe were arrested that same morning.2
Ashe was first brought to trial on May 17, 1960, on a charge of robbing one of the players, Donald Knight.3 The State called Knight and three of his fellow poker players as prosecution witnesses.4 Each of them described the circumstances of the holdup and itemized his own individual losses.5 The State's evidence that the petitioner had been one of the robbers was weak.6 Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them.7 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.8 The fourth participant in the poker game did identify the petitioner, but only by his "size and height, and his actions."9
The petitioner's defense was an alibi.10 The defense offered no testimony and waived final argument.11 The jury—though not instructed to elaborate upon its verdict—found the petitioner "not guilty due to insufficient evidence."12
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.13 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.14 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.15 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.16 The petitioner filed a motion to dismiss, based on his previous acquittal.17 The motion was overruled, and the second trial began.18 This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary.19
The Supreme Court of Missouri affirmed the conviction, holding that the "plea of former jeopardy must be denied."20 A collateral attack upon the conviction in the state courts five years later was also unsuccessful.21 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.22 The District Court denied the writ.23 The Court of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey.24 The Supreme Court granted certiorari to consider the important constitutional question this case presents.25
Whether the State of Missouri violated the Fifth Amendment guarantee against double jeopardy, applicable to the States through the Fourteenth Amendment, when it prosecuted Ashe a second time for armed robbery after a jury had acquitted him in the first prosecution arising from the same incident?26
The Fifth Amendment guarantee against double jeopardy, made applicable to the States through the Fourteenth Amendment by Benton v. Maryland, protects a defendant from a second prosecution for the same offense after acquittal.27 This protection includes the doctrine of collateral estoppel which bars relitigation of an issue of ultimate fact determined by a valid final judgment.28
Yes. The established facts show that in the first trial for robbing Knight the State presented identification testimony from four poker players that was weak and inconsistent.29 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 petitioner's defense was an alibi. The defense offered no testimony and waived final argument. The jury returned a verdict of not guilty due to insufficient evidence.30
Six weeks later the second trial for robbing Roberts featured largely the same witnesses whose identification testimony had become substantially stronger.31 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.32 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 single rationally conceivable issue in dispute at both trials was whether Ashe had been one of the robbers, and the first jury by its verdict found that he had not, making the second prosecution an attempt to relitigate that issue in violation of collateral estoppel as part of double jeopardy.33
The second prosecution violated Ashe's Fifth Amendment right against double jeopardy.34
Related opinions on this issue
Joined by Justice Douglas And Justice Marshall
Justice Brennan agreed that the Double Jeopardy Clause incorporates collateral estoppel as a constitutional requirement and therefore joined the Court's opinion.35 He would have gone further and held that 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.36 Since in this case the crimes of robbing the six victims of the poker game all arose out of the same transaction.37
He would hold that the State was constitutionally required to join in one indictment all six charges against the petitioner.38
Justice Harlan concurred in the result.39 If he were to judge this case under the traditional standards of Fourteenth Amendment due process, he would adhere to the decision in Hoag v. New Jersey.40 However, having acceded in North Carolina v. Pearce to the decision in Benton v. Maryland, which held that the Fourteenth Amendment imposes on the States the standards of the Double Jeopardy Clause of the Fifth Amendment, he was satisfied that on this present record Ashe's acquittal in the first trial brought double jeopardy standards into play.41
He made explicit his understanding that the Court's opinion in no way intimates that the Double Jeopardy Clause embraces to any degree the same transaction concept reflected in the concurring opinion of Justice Brennan.42
Justice Black joined in the opinion of the Court although he must reject any implication in that opinion that the so-called due process test of fundamental fairness might have been appropriate as a constitutional standard at some point in the past or might have a continuing relevancy today in some areas of constitutional law.43 In his view it is a wholly fallacious idea that a judge's sense of what is fundamentally fair or unfair should ever serve as a substitute for the explicit, written provisions of our Bill of Rights.44 One of these provisions is the Fifth Amendment's prohibition against putting a man twice in jeopardy.45
He affirmed his view that the Double Jeopardy Clause bars a State or the Federal Government or the two together from subjecting a defendant to the hazards of trial and possible conviction more than once for the same alleged offense.46 The opinion of the Court amply demonstrates that the doctrine of collateral estoppel is a basic and essential part of the Constitution's prohibition against double jeopardy.47
Chief Justice Burger dissented, arguing that nothing in the language or gloss previously placed on the Double Jeopardy Clause of the Fifth Amendment remotely justifies the treatment that the Court today accords to the collateral-estoppel doctrine.48 Nothing in the purpose of the authors of the Constitution commands or even justifies what the Court decides today.49 He contended that the first jury could have acquitted Ashe on grounds other than identity, such as confusion over whether four robbers were present or whether Ashe participated only in the separate robbery of Mrs. Gladson, and that the majority's analysis amounted to guesswork.50
He maintained that multiple victims permit separate prosecutions and that the same-transaction approach demeans the individuality of each victim.51
Whether the doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy and constitutes a constitutional requirement applicable to the States through the Fourteenth Amendment?52
The doctrine of collateral estoppel provides 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.53 It is a fundamental part of the Fifth Amendment guarantee against double jeopardy and is a constitutional requirement applicable to the States through the Fourteenth Amendment.54
Yes. The established facts establish that the first jury's acquittal of Ashe on the charge of robbing Knight resolved the only contested issue at that trial, which was whether Ashe was one of the robbers.55 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.56 The testimony of the four victims in this regard was consistent both internally and with that of the others.57
But the State's evidence that the petitioner had been one of the robbers was weak.58 The second trial for robbing Roberts presented substantially the same evidence on the robbery itself but strengthened the identification testimony, thereby attempting to relitigate the identical issue of Ashe's identity as one of the robbers.59 The Court held that this relitigation is forbidden.60 Collateral estoppel is embodied in the Fifth Amendment protection against double jeopardy.61 It applies to the States through the Fourteenth Amendment.62 This makes the second prosecution constitutionally impermissible regardless of any state court determination of fundamental fairness.63
The doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy and constitutes a constitutional requirement applicable to the States through the Fourteenth Amendment.64
Related opinions on this issue
Joined by Justice Douglas And Justice Marshall
Justice Brennan agreed that the Double Jeopardy Clause incorporates collateral estoppel as a constitutional requirement and therefore joined the Court's opinion on that point.65 Even if the rule of collateral estoppel had been inapplicable to the facts of this case, it is his view that the Double Jeopardy Clause nevertheless bars the prosecution of petitioner a second time for armed robbery.66 The two prosecutions grew out of one criminal episode.67
Therefore the Double Jeopardy Clause prohibited Missouri from prosecuting petitioner for each robbery at a different trial.68
Justice Harlan joined the Court's opinion after acceding to Benton v. Maryland.69 He thereby accepted that collateral estoppel standards now apply to the States through the Fourteenth Amendment.70 He clarified that the opinion does not extend the Double Jeopardy Clause to embrace the same-transaction concept reflected in Justice Brennan's concurrence.71
Harlan noted that under traditional due process standards he would have adhered to Hoag v. New Jersey, but the Benton decision required application of federal double jeopardy standards on this record.72
Justice Black joined the opinion of the Court, emphasizing that the Double Jeopardy Clause itself bars multiple trials for the same offense without any reliance on due process notions of fundamental fairness.7374 He rejected any implication that a judge's sense of what is fundamentally fair or unfair could substitute for the explicit written provisions of the Bill of Rights.75 One of these provisions is the Fifth Amendment's prohibition against putting a man twice in jeopardy.
Black affirmed his longstanding view that the Clause bars a State or the Federal Government from subjecting a defendant to the hazards of trial and possible conviction more than once for the same alleged offense.76 The opinion demonstrates that collateral estoppel is a basic and essential part of that constitutional prohibition.77
Chief Justice Burger dissented from the incorporation of collateral estoppel into the Double Jeopardy Clause.78 He contended that the doctrine was a civil litigation concept improperly transformed and applied here.79 He argued that the same-evidence test remains the proper measure and that the facts did not compel the conclusion that the first jury had decided the identity issue in Ashe's favor.80
Burger maintained that the majority engaged in guesswork about the jury's rationale and that multiple victims permit separate prosecutions under traditional double jeopardy principles.81