FEDERAL RULE OF COLLATERAL ESTOPPEL UNDER 5th AMENDMENT

Mr. Justice STEWART delivered the opinion of the Court.

[S]ometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee's Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. The robbers-- and it has never been clear whether there were three or four of them-- then fled in a car belonging to one of the victims of the robbery. Shortly thereafter the stolen car was discovered in a field, and later that morning three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away.

The four were subsequently charged with seven separate offenses-- the armed robbery of each of the six poker players and the theft of the car. In May 1960 the petitioner went to trial on the charge of robbing Donald Knight, one of the participants in the poker game. At the trial the State called Knight and three circumstances of the holdup and itemized witnesses. Each of them described the circumstances of the holdup and itemized his own individual losses. 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. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State's evidence that the petitioner had been one of the robbers was weak. 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 cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testimony regarding the holdup itself or their claims as to their losses. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony and waived final argument.

The trial judge instructed the jury that if it found that the petitioner was one of the participants in the armed robbery, the theft of 'any money' from Knight would sustain a conviction.² He also instructed the jury that if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed Knight.³ The jury-- though not instructed to elaborate upon its verdict-- found the petitioner 'not guilty due to insufficient evidence.'

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. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. 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. 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. 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 State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary.

The Supreme Court of Missouri affirmed the conviction, holding that the 'plea of former jeopardy must be denied.' A collateral attack upon the conviction in the state courts five years later was also unsuccessful. 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. Considering itself bound by this court's decision in Hoag v. New Jersey, 356 U.S. 464, the District Court denied the writ, although apparently finding merit in the petitioner's claim.⁴ The Court of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey. . . .

As the District Court and the Court of Appeals correctly noted, the operative facts here are virtually identical to those of Hoag v. New Jersey. In that case the defendant was tried for the armed robbery of three men who, along with others, had been held up in a tavern. The proof of the robbery was clear, but the evidence identifying the defendant as one of the robbers was weak, and the defendant interposed an alibi defense. The jury brought in a verdict of not guilty. The defendant was then brought to trial again, on an indictment charging the robbery of a fourth victim of the tavern holdup. This time the jury found him guilty. After appeals in the state courts proved unsuccessful, Hoag brought his case here.

Viewing the question presented solely in terms of Fourteenth Amendment due process-- whether the course that New Jersey had pursued had 'led to fundamental unfairness,' --this Court declined to reverse the judgment of conviction, because 'in the circumstances shown by this record, we cannot say that petitioner's later prosecution and conviction violated due process.'⁶ The Court found it unnecessary to decide whether 'collateral estoppel'-- the principle that bars relitigation between the same parties of issues actually determined at a previous trial-- is a due process requirement in a state criminal trial, since it accepted New Jersey's determination that the petitioner's previous acquittal did not in any event give rise to such an estoppel. And in the view the Court took of the issues presented, it did not, of course, even approach consideration of whether collateral estoppel is an ingredient of the Fifth Amendment guarantee against double jeopardy.

The doctrine of Benton v. Maryland puts the issues in the present case in a perspective quite different from that in which the issues were perceived in Hoag v. New Jersey. The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment's guarantee against double jeopardy. And if collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad bounds of 'fundamental fairness,' but a matter of constitutional fact we must decide through an examination of the entire record.

'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply 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. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85. As Mr. Justice Holmes put the matter in that case, 'It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.' 242 U.S., at 87. As a rule of federal law, therefore, '(i)t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of 'mutuality' or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain.' United States v. Kramer, 289 F.2d 909.

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to 'examine that record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' Sealfon v. United States, 332 U.S. 575. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.⁹

Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.

The ultimate question to be determined, then, in the light of Benton v. Maryland is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is.¹⁰ For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to 'run the gantlet' a second time.

The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.

After the first jury had acquitted the petitioner of robbing Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of Knight in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers.

In this case the State in its brief has frankly conceded that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution: 'No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would do-- he refined his presentation in light of the turn of events at the first trial.' But this is precisely what the constitutional guarantee forbids. . . .

Reversed and remanded.

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 therefore 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 (1959) (separate opinion). . . .

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. 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 (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 proof 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. 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 (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. 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 essentially 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.⁴

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, 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, discussed in Abbate. . . .

In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances,⁷ 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. 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. . . . 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. . . .

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. Moreover, we have recognized the jurisdiction of three-judge courts to hear statutory claims pendent to the constitutional claim that required their convening.

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. . . .

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 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' as 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. . . .

[T]he concept of double jeopardy and our firm constitutional commitment is against repeated trials 'for the same offence.' This Court, like most American jurisdictions, has expanded that part of the Constitution into a 'same evidence' test. For example, in Blockburger v. United States, 284 U.S. 299, it was stated, so far as here relevant, that 'the test to be applied to determine whether there are two offenses or only one is whether each provision (i.e., each charge) requires proof of a fact which the other does not.'

Clearly and beyond dispute the charge against Ashe in the second trial required proof of a fact-- robbery of Roberts-- which the charge involving Knight did not. The Court, therefore, has had to reach out far beyond the accepted offense-defining rule to reach its decision in this case. What it has done is to superimpose on the same-evidence test a new and novel collateral-estoppel gloss.

The majority rests its holding in part on a series of cases beginning with United States v. Oppenheimer, 242 U.S. 85, which did not involve constitutional double jeopardy but applied collateral estoppel as developed in civil litigation to federal criminal prosecutions as a matter of this Court's supervisory power over the federal court system. The Court now finds the federal collateral estoppel rule to be an 'ingredient' of the Fifth Amendment guarantee against double jeopardy and applies it to the States through the Fourteenth Amendment. This is an ingredient that eluded judges and justices for nearly two centuries; the Court finds itself endowed with a perception all our predecessors lacked and in an area of the law which encounters no new facts.

The collateral-estoppel concept-- originally a product only of civil litigation-- is a strange mutant as it is transformed to control this criminal case. In civil cases the doctrine was justified as conserving judicial resources as well as those of the parties to the actions and additionally as providing the finality needed to plan for the future. It ordinarily applies to parties on each side of the litigation who have the same interest as or who are identical with the parties in the initial litigation. Here the complainant in the second trial is not the same as in the first even though the State is a party in both cases. Very properly, in criminal cases, finality and conservation of private, public and judicial resources are lesser values than in civil litigation. Also, courts that have applied the collateral-estoppel concept to criminal actions would certainly not apply it to both parties, as is true in civil cases, i.e., here, if Ashe had been convicted at the first trial, presumably no court would then hold that he was thereby foreclosed from litigating the identification issue at the second trial.²

Perhaps, then, it comes as no surprise to find that the only expressed rationale for the majority's decision is that Ashe has 'run the gantlet' once before. This is not a doctrine of the law or legal reasoning but a colorful and graphic phrase, which, as used originally in an opinion of the Court written by Mr. Justice Black, was intended to mean something entirely different. The full phrase is 'run the gantlet once on that charge . . . ;" it is to be found in Green v. United States, where no question of multiple crimes against multiple victims was involved. Green, having been found guilty of second degree murder on a charge of first degree, secured a new trial. This Court held nothing more than that Green, once put in jeopardy-- once having 'run the gantlet . . . on that charge'-- of first degree murder, could not be compelled to defend against that charge again on retrial.

Today's step in this area of constitutional law ought not be taken on no more basis than casual reliance on the 'gantlet' phrase lifted out of the context in which it was originally used. This is decision by slogan.

After examining the facts of this case the Court concludes that the first jury must have concluded that Ashe was not one of the robbers-- that he was not present at the time.⁵ Also, since the second jury necessarily reached its decision by finding he was present, the collateral-estoppel doctrine applies. But the majority's analysis of the facts completely disregards the confusion injected into the case by the robbery of Mrs. Gladson. To me, if we are to psychoanalyze the jury, the evidence adduced at the first trial could more reasonably be construed as indicating that Ashe had been at the Gladson home with the other three men but was not one of those involved in the basement robbery. Certainly, the evidence at the first trial was equivocal as to whether there were three or four robbers, whether the man who robbed Mrs. Gladson was one of the three who robbed the six male victims, and whether a man other than the three had robbed Mrs. Gladson. Then, since the jury could have thought that the 'acting together' instruction given by the trial court in both trials only applied to the actual taking from the six card players, and not to Mrs. Gladson, the jury could well have acquitted Ashe but yet believed that he was present in the Gladson home. On the other hand, the evidence adduced at the second trial resolved issues other than identity that may have troubled the first jury. If believed, that evidence indicated that a fourth robber, Johnson, not Ashe, was with Mrs. Gladson when Ashe, Larson, and Brown were robbing the male victims. Johnson did go to the basement where the male victims were located, but only after the other three had already taken the stolen items and when the robbers were preparing for their departure in a car to be stolen from Roberts.

 Accordingly, even the facts in this case, which the Court's opinion considers to 'lead to but one conclusion,' are susceptible of an interpretation that the first jury did not base its acquittal on the identity ground which the Court finds so compelling. The Court bases its holding on sheer 'guesswork,' which should have no place particularly in our review of state convictions by way of habeas corpus. . . .

The essence of Mr. Justice BRENNAN's concurrence is that this was all one transaction, one episode, or, if I may so characterize it, one frolic, and, hence, only one crime. His approach, like that taken by the Court, totally overlooks the significance of there being six entirely separate charges of robbery against six individuals.

This 'single frolic' concept is not a novel notion; it has been urged in various courts including this Court. One of the theses underlying the 'single frolic' notion is that the criminal episode is 'indivisible.' The short answer to that is that to the victims, the criminal conduct is readily divisible and intensely personal; each offense is an offense against a person. For me it demeans the dignity of the human personality and individuality to talk of 'a single transaction' in the context or six separate assaults on six individuals.

No court that elevates the individual rights and human dignity of the accused to a high place-- as we should-- ought to be so casual as to treat the victims as a single homogenized lump of human clay. I would grant the dignity of individual status to the victims as much as to those accused, not more but surely no less. . . .