After defendant was acquitted at his first trial, his second trial on a different related charge did not violate his right against double jeopardy because he consented to severance of the charges. Currier was charged with burglary, grand larceny, and felon in possession of a gun in Virginia State court. He sought bifurcation of the gun possession count so that evidence of his prior burglary conviction would not be introduced in his trial for burglary and grand larceny. He was acquitted in the first trial. Currier sought to stop the second trial on double jeopardy grounds. Alternatively, he asked the trial court to prohibit the prosecution from relitigating any issue resolved in his favor in the first trial. These requests were denied and Currier was convicted in his second trial of illegal gun possession. On appeal, the Virginia Court of Appeals and Supreme Court affirmed. The U.S. Supreme Court granted Currier’s petition for writ of certiorari. Held: Affirmed. The double jeopardy clause provides that no person may be tried more than once for the same offense. In Ashe v. Swenson (1970) 397 U.S. 436, the court suggested that relitigation of an issue can sometimes amount to the impermissible relitigation of an offense. Ashe concluded that double jeopardy precluded trying the defendant for robbing a second victim where he was acquitted of robbing another victim during the same crime, because a second jury could not rationally find the defendant was among the robbers without calling into question the earlier acquittal. However, even assuming Currier’s second trial qualified as a retrial of the same offense as occurred in Ashe, he consented to two trials where one could have done. This foreclosed Currier’s double jeopardy complaint. U.S. Supreme Court precedents “make clear that a defendant’s consent dispels any specter of double jeopardy abuse that holding two trials might otherwise present.” This is not a case where Currier had to give up one constitutional right to secure another; “he faced a lawful choice between two courses of action that each bore potential costs and rationally attractive benefits.” Difficult strategic choices like these are “not the same as no choice.” [Editor’s Note: In a part of the opinion that was not joined by a majority of the Justices, the court determined that issue preclusion principles used in civil cases may not be imported into criminal law via the double jeopardy clause to prevent retrial of any previously tried issue.]

The full opinion is available on the court’s website here: https://www.supremecourt.gov/opinions/17pdf/16-1348_h315.pdf