Currier v. Virginia
The Supreme Court ruled that a Virginia man who agreed to have his firearm-possession charge tried separately from his burglary and larceny charges could not then claim double jeopardy protected him from that second trial, even after he was acquitted at the first one.
The Court also declined to import civil-style issue-preclusion rules into criminal double jeopardy law, meaning that once a defendant consents to two trials, prosecutors generally remain free to introduce evidence and arguments the first jury may have rejected.
How it got here: A Virginia trial court allowed the second trial after acquittal on related charges; the Virginia Court of Appeals rejected Currier's double jeopardy claims and the Virginia Supreme Court summarily affirmed before the Supreme Court agreed to hear the case.
The Case in Depth
What happened
Michael Currier was charged with burglary, grand larceny, and illegally possessing a firearm as a convicted felon, all stemming from the theft of a safe full of guns and cash from a Virginia home. Because his past convictions could unfairly sway jurors on the other charges, Currier and prosecutors agreed to hold two separate trials. He was acquitted of burglary and larceny but later convicted of the firearm charge.
The question before the Court
If a defendant agrees to split his trial into two so a jury won't hear about his prior convictions, can he later use double jeopardy to block or limit the second trial?
The Court's answer
No — the Court ruled that Currier's own agreement to hold two trials defeated his double jeopardy claim. The Double Jeopardy Clause protects against being tried twice for the "same offense," and a special rule from Ashe v. Swenson can sometimes treat relitigating a factual issue as relitigating an offense. But that protection can be given up, and Currier gave it up by asking for and getting separate trials to avoid prejudicial evidence.
A four-justice group went further, rejecting Currier's fallback argument that even though he agreed to two trials, prosecutors still couldn't reintroduce evidence about issues the first jury resolved in his favor. They found no basis in the text, history, or prior cases of the Double Jeopardy Clause for importing civil-style issue-preclusion rules into criminal trials, so the evidence from the first trial could be used again at the second.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Defendants who ask for separate trials to avoid prejudicial evidence, a common defense tactic, cannot later use an acquittal from the first trial to block or constrain the second. Prosecutors keep more flexibility to retry related conduct after severance, and states can keep offering severance without fear that doing so will hand defendants extra double-jeopardy protections.
What changes now
The decision is final on the merits; Currier's felon-in-possession conviction stands and no further proceedings are required in his case. More broadly, defendants who request severance to avoid prejudicial evidence should expect that doing so forecloses double jeopardy challenges to the later trial, including challenges to reusing evidence or issues from the first trial, unless Congress or state legislatures choose to adopt broader protections.
What this does not decide
The Court did not decide whether double jeopardy issue-preclusion protections would apply if a defendant had no real choice but to accept severance, such as where state law forces separate trials regardless of consent. It also left open whether states or Congress could adopt broader preclusion rules by statute.
Concurrences and dissents
Concurrence in part — Justice Kennedy
Justice Kennedy joined only Parts I and II, agreeing that Currier's consent to severance defeated his double jeopardy claim and that this fully resolved the case. He declined to join Part III's broader discussion of whether civil issue-preclusion principles apply in criminal cases, saying the scope of Ashe's protections did not need to be reexamined here since consent alone controlled the outcome.
Dissent — Justice Ginsburg
Justice Ginsburg argued that agreeing to severance is not the same as giving up the separate right to prevent prosecutors from relitigating facts a jury already resolved in the defendant's favor. She would have held that Currier's acquittals on the burglary and larceny charges barred the prosecution from reintroducing evidence of his alleged involvement in those crimes at the firearm trial, and would have reversed his conviction.
How the Court got there
The legal reasoning, step by step
- The Court applied the demanding test from Ashe v. Swenson, under which a second trial is barred only if the prosecution must win on an issue the first jury necessarily decided in the defendant's favor to secure a conviction — not merely if an acquittal seems hard to explain otherwise.
- Even assuming the second trial qualified as retrying the 'same offense' under this Ashe theory, the Court found a decisive difference from Ashe itself: Currier had asked for and obtained the two-trial structure, rather than having it imposed on him.
- Relying on Jeffers v. United States, the Court reasoned that if a defendant's request for separate trials can defeat an ordinary double jeopardy objection to a second trial on a related charge, the same consent must also defeat the more unusual Ashe-style objection.
- The Court rejected the argument that Currier had no real choice, framing his decision as a lawful strategic tradeoff between risks — not a forced surrender of one constitutional right to obtain another — and noted that difficult choices are not the same as no choice at all.
- Turning to the fallback argument for limiting what evidence could be used at the second trial, four justices concluded that the text of the Double Jeopardy Clause bars retrying 'offenses,' not issues or evidence, and that the Clause's history shows courts long allowed relitigation of overlapping facts as long as the offenses charged were legally distinct.
- Those four justices further reasoned that importing civil issue-preclusion rules into criminal law would sit awkwardly with existing double jeopardy doctrine and could backfire by making severance more costly for courts and therefore less available to defendants going forward.
Doctrinal impact
Cases affected by this decision
Distinguishes Ashe v. Swenson (397 U.S. 436)
The Court found Ashe's issue-preclusion rule didn't control here because, unlike Ashe, Currier consented to the second trial.
Reaffirms Dowling v. United States (493 U.S. 342)
Cited as already rejecting the idea that acquitted conduct must be excluded from a later, related trial.
Reaffirms Jeffers v. United States (432 U.S. 137)
Used as the key precedent for the rule that requesting separate trials waives later double jeopardy objections.