Double Jeopardy–Issue-Preclusive Effect of Acquittal After Consent to Severance of Multiple Charges into Sequential Trials
February 23rd, 2018

“A jury’s verdict of acquittal represents the community’s collective judgment regarding all the evidence and arguments presented to it. Even if the verdict is “based upon an egregiously erroneous foundation, its finality is unassailable.” (Yeager v. United States, (2009) 557 U.S. 110, 122-23, internal citations and punctuation omitted. Thus, if the jury necessarily resolved a critical issue in favor of the defendant the issue preclusion doctrine protects the defendant against prosecution for any charge for which that issue is an essential element. (Ibid. cf.,  Bravo-Fernandez v. United States (2016) _____ U.S. ______, 137 S. Ct. 352 [double jeopardy did not bar retrial of defendants for bribery based on issue preclusion since the jury’s verdict of guilty to bribery, which was vacated based on instructional error concerning the scope of bribery, was rationally inconsistent with the jury’s verdict of acquittal on related charges of conspiracy and interstate travel, and there was thus no basis to conclude that the jury actually decided that the defendants were not guilty of bribery].)


In Currier v. Commonwealth (Va. 2016) 798 S.E.2d 164, cert. granted 10/16/2017 (16-1348) the high court will consider whether the issue preclusion doctrine applies to a situation where the defendant consented to severance of multiple charges into sequential trials.