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Law School Case Brief

Ashe v. Swenson - 397 U.S. 436, 90 S. Ct. 1189 (1970)


The collateral estoppel rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. 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.


Six men engaged in a poker game were robbed by three or four masked gunmen. Six weeks after being acquitted in a state trial for the robbery of one of the players, defendant Bob Fred Ashe, was tried for the robbery of another of the players and was convicted. The witnesses in the two trials were for the most part the same and the state's evidence establishing the facts of the robbery was uncontradicted, but the testimony identifying Ashe as one of the robbers was substantially stronger at the second trial. 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. Ashe filed a petition for habeas corpus 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. The District Court denied the writ, and the United States Court of Appeals for the Eighth Circuit affirmed. The United States Supreme Court granted certiorari.


Did the defendant’s second prosecution violate his right against double jeopardy?




The Supreme Court concluded that collateral estoppel, or issue preclusion, was a part of the guarantee under U.S. Const. amend. V against double jeopardy. The Court reviewed the record to determine if defendant's criminal conviction could have been decided upon any issue other than that which he sought to foreclose from consideration. The Court found that the only rationally conceivable issue in dispute before the jury in defendant's first trial was whether he was one of the robbers. Since the jury had concluded that he was not, collateral estoppel made his second prosecution for the robbery unconstitutional and impermissible.

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