Facts of the Case

Provided by Oyez

Michael N. Currier was indicted by a single grand jury and charged with burglary, grand larceny, and possession of a firearm as a convicted felon. Before trial, the defense and prosecution agreed to sever the firearm charge from the grand larceny and burglary charges. The case proceeded to trial on the burglary and grand larceny charges, and a jury acquitted Currier of both charges.


When the Commonwealth of Virginia sought to try Currier on the remaining charge of felon in possession of a firearm, he objected that collateral estoppel (issue preclusion) protections embodied in the Double Jeopardy Clause precluded his retrial. Notwithstanding his objections, Currier was tried, convicted, and sentenced. Currier filed a motion to set aside the jury verdict, and the trial court denied his motion. The Virginia Court of Appeals affirmed the lower court’s conviction, as did the Supreme Court of Virginia.


  1. Does a defendant who consents to the severance of multiple charges into sequential trials lose his right under the Double Jeopardy Clause to the issue-preclusive effect of an acquittal?


  1. The Court affirmed the Virginia Supreme Court’s ruling in a 5-4 vote, holding that because Currier consented to a severance of the multiple charges against him, his second trial and resulting conviction, following an acquittal at his first trial, did not violate the double jeopardy clause.

    Justice Gorsuch delivered the Court’s opinion with respect to Parts I and II, explaining that the double jeopardy clause bars a person from being tried more than once “for the same offence.” Currier argued that the Court’s precedent in Ashe v. Swenson, 397 U.S. 436 (1970) required a ruling in his favor. However, the Court stated that for a second trial to be precluded under Ashe, the Court must have been able to conclude that “it would have been irrational for the jury” in the initial trial to acquit without finding for the defendant on a fact essential to a conviction in the second trial. The Court then distinguished Ashe from the instant case by pointing out that even if Currier’s second trial could be classified as a retrial of the same offense under Ashe, he consented to it.

    The Court went on to explain that the relevant precedent was Jeffers v. United States, 432 U.S. 137 (1977), in which the issue was a trial on a greater offense after an acquittal of a lesser-included offense. In Jeffers the Court held that if a single trial on multiple charges would be sufficient to avoid a double jeopardy violation, there could not be a violation where the defendant seeks two separate trials and persuades the trial court to grant the request. The Court stated that if consent could nullify a double jeopardy complaint in a situation involving a second trial for a greater offense, it could certainly overcome a double jeopardy complaint under Ashe. To hold otherwise would have been inconsistent with Jeffers and other Supreme Court precedent.

    In Part III, Justice Gorsuch was joined by Chief Justice Roberts, Justice Thomas, and Justice Alito in concluding that civil issue preclusion principles could not be applied to criminal law through the double jeopardy clause to stop parties from retrying any issue or bringing in evidence regarding a previously tried issue. 

    Justice Kennedy filed a separate opinion concurring in part, finding that because Parts I and II resolved the case fully and properly, the scope of double jeopardy protections defined in Ashe did not need to be part of the Court’s analysis here.

    Justice Ginsburg authored a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.