Doctrine of Collateral Estoppel as Component of Double Jeopardy
Ashe v. Swenson, Supreme Court of the United States (1970), 397 U.S. 436, 90 S.Ct. 1189
FACTS:
In the early hours of January 10, 1960, six men were playing poker in the basement of a home. Without warning, three or four masked men broke into the home and robbed each of the players of personal property. The robbers fled in an auto belonging to one of the victims. While none of the victims could clearly identify any of the robbers, police managed to apprehend several men who were discovered near the car stolen from one of the poker players. The petitioner was arrested some distance away from the location where police took the others into custody.
At petitioner's initial trial for robbery of one of the victims, the prosecution's evidence proved excellent concerning the fact of the robbery but was less than convincing that the defendant was one of the culprits. The jury acquitted respondent due to insufficient evidence of his identity as one of the felons.
The prosecution brought respondent to trial six weeks later concerning robbery of the second victim. The trial court dismissed petitioner's contention that he had been previously acquitted of one of the facts essential to prove robbery and, following the second trial, the jury rendered a guilty verdict. In the period between the two trials, the prosecutor had improved the evidence relating to petitioner's identity. 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 clearly negative. The jury found the petitioner guilty at the second trial, and he was sentenced to a 3 year term in the state penitentiary.
The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where a fact essential to proving guilt has clearly been determined in defendant's favor at his first trial, does the doctrine of collateral estoppel prevent the government from requiring a defendant from re-litigating the same issue at a second or subsequent trial based on the same transaction or occurrence?
HELD: Yes.
RATIONALE:
* * *
"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 (1916). 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." 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."
[Prior decisions in United States courts] . . . 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 the 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 (1948). 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.
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 [or not] 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 determination to be made] . . . is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy [and is to be applied against the states]. We do not hesitate to hold that it is. For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to "run the gauntlet" a second time. Green v. United States, 355 U.S. 184 (1957).
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 [a second time].
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.
JUSTICE BRENNAN, whom Justice DOUGLAS and JUSTICE MARSHALL join, concurring.
. . . [T]he Double Jeopardy Clause incorporates collateral estoppel as a constitutional requirement and therefore [I] 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.
Notes
1. Would the doctrine of collateral estoppel operate in the reverse? Should it? Suppose the defendant in Ashe had been convicted, would the defendant be able to force the government to prove his identity at a second robbery trial since it had proved it at the first trial? Collateral estoppel 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. On the other hand, the strong general rule is that the government has the burden of proof on every element of the crime charged. The consensus on the matter seems to be that the doctrine of collateral estoppel, as it applies to criminal cases, constitutes only a pro-defendant legal theory and is not available to the prosecution.
2. At a later prosecution, may the government use evidence from a prior case in which the defendant was acquitted? In Dowling v. United States, 493 U.S. 342 (1990), the defendant had been charged with the crime of bank robbery in violation of federal law. At his trial, the government introduced evidence that defendant had entered a residence [wearing a knitted mask similar to the one the government contended Dowling had worn at the bank robbery] and the victim had unmasked Mr. Dowling. However, Dowling had been acquitted of the residential burglary. Does the use of the testimony run afoul of the doctrine of collateral estoppel? The Supreme Court answered the question in the negative since the prior residential burglary acquittal did not determine an ultimate issue in the federal bank robbery case in favor of Dowling. In sharp contrast, in Ashe v. Swenson, the ultimate issue of whether the defendant there was present had been found in defendant's favor and was an element at the second trial in Ashe. Therefore, the evidence in Dowling was not barred by collateral estoppel.
Prosecutions by Separate States: Dual Sovereignty Doctrine
HEATH v. ALABAMA, Supreme Court of the United States (1985), 474 U.S. 82, 106 S.Ct. 433
FACTS:
In August 1981, petitioner Heath hired two men to kill his pregnant wife, Rebecca Heath. On the morning of the killing, petitioner Heath left the family residence in Alabama to meet with the two killers in Georgia. Petitioner led the killers from Georgia back to the marital abode in Alabama where he gave them the keys to the house and car. Heath left the area in his girlfriend's truck. The hired killers kidnaped Rebecca Heath in Alabama and took her to Georgia where they murdered her.
Georgia and Alabama authorities initiated dual investigations. Following a November 1981 Georgia indictment for "malice" murder with death penalty specifications, Heath pled guilty to murder in exchange for a life sentence.
Mr. Heath's legal problems continued when an Alabama grand jury indicted him for the capital offense of murder during the course of a kidnaping. In a pretrial motion, Heath argued that since he had already been convicted of the murder of his wife by a Georgia court, a second trial in Alabama would violate the double jeopardy provision of the Alabama and the United States Constitutions. The trial court rejected Heath's double jeopardy contention because he had been tried once in Georgia and was to be tried only once in Alabama, a separate sovereign state.
In January 1983, an Alabama trial jury returned a guilty verdict to the murder indictment and advised the imposition of the death penalty. The judge accepted the jury recommendation by sentencing Heath to death. Alabama state courts affirmed his conviction.
Petitioner Heath sought and received a writ of certiorari by raising claims based on his interpretation of double jeopardy under the Fifth Amendment.
PROCEDURAL QUESTION:
Where a defendant commits an act which constitutes two different crimes in two separate states, does the subsequent prosecution by the second state constitute double jeopardy when the defendant has been convicted of a crime arising from the same act in the first state?
HELD: NO.
RATIONALE:
JUSTICE O'CONNOR delivered the opinion of the Court.
* * *II
Successive prosecutions are barred by the Fifth Amendment only if the two offenses for which the defendant is prosecuted are the "same" for double jeopardy purposes. Respondent does not contravene petitioner's contention that the offenses of "murder during a kidnaping" and "malice murder," as construed by the courts of Alabama and Georgia respectively, may be considered greater and lesser offenses and, thus, the "same" offense under Brown v. Ohio, [432 U.S. 161 (1977)], absent operation of the dual sovereignty principle. See Illinois v. Vitale, [447 U.S. 410 (1980)]. We, therefore, assume arguendo that, had these offenses arisen under the laws of one State and had petitioner been separately prosecuted for both offenses in that State, the second conviction would have been barred by the Double Jeopardy Clause.
The sole remaining question upon which we granted certiorari is whether the dual sovereignty doctrine permits successive prosecutions under the laws of different States which otherwise would be held to "subject [Heath] for the same offence to be twice put in jeopardy." Although we have not previously so held, we believe the answer to this query is inescapable. The dual sovereignty doctrine, as originally articulated and consistently applied by this Court, compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause.
The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences."
* * *
In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power. [Citations omitted.] Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own "inherent sovereignty," not from the Federal Government. . . . See Abbate v. United States, 359 U.S. 187 (1959). (collecting cases); [United States v.] Lanza, [260 U.S. 377 (1922).] As stated in Lanza, supra, at 382:
"Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.
"It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."
* * *
The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment.
* * *
In those instances where the Court has found the dual sovereignty doctrine inapplicable, it has done so because the two prosecuting entities did not derive their powers to prosecute from independent sources of authority. Thus, the Court has held that successive prosecutions by federal and territorial courts are barred because such courts are "creations emanating from the same sovereignty." [Citations omitted.] Similarly, municipalities that derive their power to try a defendant from the same organic law that empowers the State to prosecute are not separate sovereigns with respect to the State. . . . These cases confirm that it is the presence of independent sovereign authority to prosecute, not the relation between States and the Federal Government in our federalist system, that constitutes the basis for the dual sovereignty doctrine.
* * *III
Petitioner invites us to restrict the applicability of the dual sovereignty principle to cases in which two governmental entities, having concurrent jurisdiction and pursuing quite different interests, can demonstrate that allowing only one entity to exercise jurisdiction over the defendant will interfere with the unvindicated interests of the second entity and that multiple prosecutions therefore are necessary for the satisfaction of the legitimate interests of both entities. This balancing of interests approach, however, cannot be reconciled with the dual sovereignty principle. This Court has plainly and repeatedly stated that two identical offenses are not the "same offence" within the meaning of the Double Jeopardy Clause if they are prosecuted by different sovereigns. . . . If the States are separate sovereigns, as they must be under the definition of sovereignty which the Court consistently has employed, the circumstances of the case are irrelevant.
Petitioner, then, is asking the Court to discard its sovereignty analysis and to substitute in its stead his difficult and uncertain balancing of interests approach. The Court has refused a similar request on at least one previous occasion, see Abbate v. United States, 359 U.S. 187 (1959) . . . . The Court's express rationale for the dual sovereignty doctrine is not simply a fiction that can be disregarded in difficult cases. It finds weighty support in the historical understanding and political realities of the States' role in the federal system and in the words of the Double Jeopardy Clause itself, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
* * *
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.
* * *
[Justice Marshall noted that some activities which were both crimes under state law and also under federal law are prosecuted by both sovereigns in order to vindicate important, but different interests. He supported the ability of a state and the federal government to prosecute for separate crimes stemming from the same act without violating the constitutional prohibition against double jeopardy.]
Where two States seek to prosecute the same defendant for the same crime in two separate proceedings, the justifications found in the federal-state context for an exemption from double jeopardy constraints simply do not hold. Although the two States may have opted for different policies within their assigned territorial jurisdictions, the sovereign concerns with whose vindication each State has been charged are identical. Thus, in contrast to the federal-state context, barring the second prosecution would still permit one government to act upon the broad range of sovereign concerns that have been reserved to the States by the Constitution. The compelling need in the federal-state context to subordinate double jeopardy concerns is thus considerably diminished in cases involving successive prosecutions by different States. Moreover, from the defendant's perspective, the burden of successive prosecutions cannot be justified as the quid pro quo of dual citizenship.
To be sure, a refusal to extend the dual sovereignty rule to state-state prosecutions would preclude the State that has lost the "race to the courthouse" from vindicating legitimate policies distinct from those underlying its sister State's prosecution. But as yet, I am not persuaded that a State's desire to further a particular policy should be permitted to deprive a defendant of his constitutionally protected right not to be brought to bar more than once to answer essentially the same charges. . . .
Notes
1. Is the defendant really being forced to defend against two separate murders? Or is it really only one killing? His wife died but once, while Heath was convicted of murder twice. Does logic allow Heath to be convicted of two murders when only one person died?
2. Would your answer to question #1 be different if the Georgia prosecution staff and police agencies fully cooperated with Alabama's prosecution to the extent of sending witnesses and police officers to testify at Heath's Alabama trial? Interstate cooperation actually occurred in this homicide case. Was Georgia really subjecting Heath to a second prosecution which could not legally be accomplished if attempted by Georgia? Is it possible that the Georgia authorities were dissatisfied with the sentence initially received by Heath and cooperated with Alabama authorities to do what Georgia could not legally do a second time?
Double Jeopardy not Implicated Where Acts Have Different Elements
UNITED STATES v. DIXON, Supreme Court of the United States (1993), U.S. , 113 S.Ct. 2849.
FACTS:
In two cases consolidated for adjudication, respondents Dixon and Foster were tried for criminal contempt of court for violating court orders that prohibited them from engaging in criminal conduct which was later prosecuted by the government.
Authorities arrested respondent Alvin Dixon for second-degree murder and he was subsequently released on bond. The court ordered Dixon not to commit any criminal acts and warned that any violation of the conditions of release would subject him to, among other sanctions, prosecution for contempt of court.
While free on bail, Dixon was arrested and indicted for possession of cocaine with intent to distribute. The original court issued an order requiring Dixon to show cause why he should not be held in criminal contempt. At the show-cause hearing, numerous law enforcement officers testified concerning the alleged drug offense. The court held that the Government had proved beyond a reasonable doubt that respondent Dixon was in possession of drugs [cocaine] with the intent to distribute. The court found Dixon guilty of criminal contempt of court and imposed a 180 day term. He later successfully moved to prevent his trial on cocaine charges by alleging a violation of double jeopardy, a motion the trial court granted.
The second respondent, Michael Foster engaged in conduct which placed his case in a similar legal posture. Foster's estranged wife Ana obtained a protection order because of Foster's alleged physical attacks upon her. The civil protection [CPO] order required that Foster not harm or abuse his wife or her mother. Apparently, Foster failed to comply with the order because Mrs. Foster filed three separate motions to have her husband held in contempt for violations of the CPO. Of the 16 alleged episodes, the only charges relevant in this case are three separate instances of threats and two assaults, the most serious of which respondent Foster threw Mrs. Foster down a basement stairway, rendering her consciousness."
The court held a bench trial concerning the alleged violations of the CPO and held that the evidence proved Foster guilty beyond a reasonable doubt of four counts of criminal contempt and acquitted him on some counts. The judge sentenced Foster to a total of 600 days in custody.
Subsequently, the government procured an indictment charging Foster with simple assault [Count I], threatening to injure [Counts II-IV], and assault with intent to kill his wife [Count V]. Mrs. Foster was the complainant in all counts; the first and last counts were based on the events for which the court had already held Foster in contempt, and the other three were based on the alleged criminal activity for which Foster had been acquitted of contempt. Through counsel, Foster filed a pretrial motion to dismiss the indictment, claiming a double jeopardy bar to all counts [I-V], and also collateral estoppel as to Counts II-IV. The trial court denied Foster's double jeopardy claim and did not rule on the collateral estoppel assertion.
Foster appealed the trial court's denial of his motion, and the Government appealed the double jeopardy ruling in Dixon. The District of Columbia Court of Appeals consolidated the two cases and, relying on the decision in Grady v. Corbin, (1990), ruled that both subsequent prosecutions were barred by the Double Jeopardy Clause.
The Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Does the Double Jeopardy Clause bar prosecution of a defendant on substantive criminal charges with different criminal elements when based upon the same conduct for which he previously has been held in criminal contempt of court?
HELD: No.
RATIONALE:
JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Parts III and V, in which JUSTICE KENNEDY joins.
II* * *
The Double Jeopardy Clause, whose application to this . . . context we are called upon to consider, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., Amdt. 5. This protection applies both to successive punishments and to successive prosecutions for the same criminal offense. It is well established that criminal contempt, at least the sort enforced through nonsummary proceedings, is "a crime in the ordinary sense." [Citations omitted.]
We have held that constitutional protections for criminal defendants other than the double jeopardy provision apply in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions. See, e.g., Gompers v. Bucks Stove & Range Co. (1911) (presumption of innocence; proof beyond a reasonable doubt, and guarantee against self-incrimination); Cooke v. United States (1925) (notice of charges, assistance of counsel; and right to present a defense); In re Oliver (1948) (public trial. We think it obvious, and today hold, that the protection of the Double Jeopardy Clause likewise attaches. [Citations omitted.]
In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is . . . tried cannot survive the "same-elements" test, the double jeopardy bar applies. . . . The same-elements test, sometimes referred to as the "Blockburger" test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution. In a case . . . in which the contempt prosecution was for disruption of judicial business, the same-elements test would not bar subsequent prosecution for the criminal assault that was part of the disruption, because the contempt offense did not require the element of criminal conduct, and the criminal offense did not require the element of disrupting judicial business.
We recently held in Grady that in addition to passing the Blockburger test, a subsequent prosecution must satisfy a "same-conduct" test to avoid the double jeopardy bar. The Grady test provides that, "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been
prosecuted," a second prosecution may not be had. 495 U.S., at 510.
IIIA
The first question before us today is whether [the] Blockburger analysis permits subsequent prosecution in this new criminal contempt context, where [a] judicial order has prohibited criminal act[ivity]. If it does, we must then proceed to consider whether Grady [495 U.S. 508 (1990)] also permits it.
* * *
[The court considered Dixon's case first because his case did not require the Court to made a decision based on Grady v. Corbin, (1990).]
In this situation, in which the contempt sanction is imposed for violating the order through commission of the incorporated drug offense, the later attempt to prosecute Dixon for the drug offense resembles the situation that produced our judgment of double jeopardy in Harris v. Oklahoma, 4333 U.S. 682 (1977). There we held that a subsequent prosecution for robbery with a firearm was barred by the Double Jeopardy Clause, because the defendant had already been tried for felony-murder based on the same underlying felony. We have described our terse [opinion] in Harris as standing for the proposition that, for double jeopardy purposes, "the crime generally described as felony murder" is not "a separate offense distinct from its various elements." So too here, the "crime" of violating a condition of release cannot be abstracted from the "element" of the violated condition. The Dixon court order incorporated the entire governing criminal code in the same manner as the Harris felony-murder statute incorporated the several enumerated felonies. Here, as in Harris, the underlying substantive criminal offense is "a species of lesser-included offense." [Citation omitted.]
[In its brief, the government contended that the court order in Dixon's case might] serve "interests . . . fundamentally different" from the substantive criminal law, because it derives in part from the determination of a court rather than a determination of the legislature. That distinction seems questionable, since the court's power to establish conditions of release, and to punish their violation, was conferred by statute; the legislature was the ultimate source of both the criminal and the contempt prohibition. More importantly, however, the distinction is of no moment for purposes of the Double Jeopardy Clause, the text of which looks to whether the offenses are the same, not the interest that the offenses violate. And this Court stated long ago that criminal contempt, at least in its nonsummary form, "is a crime in every fundamental respect." Bloom, supra. Because Dixon's drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution [for possession of drugs] violates the Double Jeopardy Clause.
The foregoing analysis obviously applies as well to Count I of the indictment against Foster, charging assault in violation of §22-504, based on the same event that was the subject of his prior contempt conviction for violating the provision of the CPO forbidding him to commit simple assault under §22-504. The subsequent prosecution for assault fails the Blockburger test, and is barred.
B
[The Court decided to reconsider Grady v. Corbin in light of Mr. Foster's case since Grady, if it remained good law, would have required dismissal of the other charges against Foster. Grady prohibited a reprosecution if, to establish an essential element of a second offense, the government would have to prove conduct which constituted an offense for which the defendant had already been prosecuted.]
The remaining four counts in Foster, assault with intent to kill and threats to injure or kidnap are not barred under Blockburger. [Statute citations omitted.] Foster's conduct on May 21, 1988 was found to violate the Family Division's order that he not "molest, assault, or in any manner threaten or physically abuse" his wife. At the contempt hearing, the court stated that Ana Foster's attorney, who prosecuted the contempt, would have to prove first, knowledge of a CPO, and second, a willful violation of one of its conditions, here simple assault as defined by the criminal code. . . . On the basis of the same episode, Foster was then indicted for assault with intent to kill. Under governing law, that offense requires proof of specific intent to kill; simple assault does not. . . . Similarly, the contempt offense required proof of knowledge of the CPO, which assault with intent to kill does not. Applying the Blockburger elements test, the result is clear: These crimes were different offenses and the subsequent prosecution did not violate the Double Jeopardy Clause.
[The remaining charges against Foster are not barred by the double jeopardy clause.] [The indictment] charged Foster [under §22-2307] (forbidding anyone to "threate[n] . . . to kidnap any person or to injure the person of another or physically damage the property of any person" for his alleged threats on three separate dates. Foster's contempt prosecution included charges that, on the same dates, he violated the CPO provision ordering that he not "in any manner threaten" Ana Foster. Conviction of the contempt required willful violation of the CPO--which conviction under §22-2307 did not; and conviction under §22-2307 required that the threat be a threat to kidnap, to inflict bodily injury, or to damage property--which conviction of the contempt (for violating the CPO provision that Foster not "in any manner threaten") did not. Each offense therefore contained a separate element, and the Blockburger test for double jeopardy was not met.
IV
Having found that at least some of the counts at issue here are not barred by the Blockburger test, we must consider whether they are barred by the new, additional double jeopardy test we announced three terms ago in Grady v. Corbin. They undoubtedly are, since Grady prohibits "a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution [here, assault as an element of assault with intent to kill, or threatening as an element of threatening bodily injury], the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted [here, the assault and the threatening, which conduct constituted the offense of violating the CPO]." 495 U.S., at 510.
We have concluded, however, that Grady must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the "same offence," U.S. Const., Amdt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The "same-conduct" rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy. [Citation omitted.]
* * *
But Grady was not only wrong in principle; it has already proved unstable in application. Less than two years after it came down, in United States v. Felix, 503 U.S. , (1992), we were forced to recognize a large exception to it. There we concluded that a subsequent prosecution for conspiracy to manufacture, possess, and distribute methamphetamine was not barred by a previous conviction for attempt to manufacture the same substance. We offered as a justification for avoiding a "literal" (i.e., faithful) reading of Grady [the] "longstanding authority" to the effect that prosecution for conspiracy is not precluded by prior prosecution for the substantive offense. [Citation omitted.] Of course the very existence of such a large and longstanding "exception" to the Grady rule gave cause for concern that the rule was not an accurate expression of the law. This "past practice" excuse is not available to support the ignoring of Grady in the present case, since there is no Supreme Court precedent even discussing this fairly new breed of successive prosecution (criminal contempt for violation of a court order prohibiting a crime, followed by prosecution for the crime itself).
* * *
Having encountered today yet another situation in which the pre-Grady understanding of the Double Jeopardy Clause allows a second trial, though the "same-conduct" test would not, we think it time to acknowledge what is now, three years after Grady, compellingly clear: the case was a mistake. We do not lightly reconsider a precedent, but, because Grady contradicted an "unbroken line of decisions," contained "less than accurate" historical analysis, and has produced "confusion," we do so here. . . . Although stare decisis is the "preferred course" in constitutional adjudication, "when governing decisions are unworkable or are badly reasoned, `this Court has never felt constrained to follow precedent.'" . . . We would mock stare decisis and only add chaos to our double jeopardy jurisprudence by pretending that Grady survives when it does not. We therefore accept the Government's invitation to overrule Grady, and Counts II, III, IV, and V of Foster's subsequent prosecution are not barred.
V
Dixon's subsequent prosecution, as well as Count I of Foster's subsequent prosecution, violate the Double Jeopardy Clause. For the reasons set forth in Part IV, the other Counts of Foster's subsequent prosecution do not violate the Double Jeopardy Clause. The judgment of the District of Columbia Court of Appeals is affirmed in part and reversed in part, and the case is remanded for proceedings not inconsistent with this opinion.
It is so ordered.
Notes
1. The principal case, Dixon, overruled, Grady v. Corbin, 495 U.S. 508 (1990). The judicial voting in Dixon did not produce a majority, but five members voted to overturn the recent Grady decision. Grady originally held that even where a subsequent prosecution was not barred by the Blockburger test for separate crimes, second prosecutions may be barred where the defendant has been tried using the same or similar evidence which will be used in the second prosecution. According to Grady, the double jeopardy clause bars a reprosecution in which the government will prove conduct which constitutes an offense for which the defendant has already been prosecuted. Grady held that, "The critical inquiry is what conduct the state will prove, not the evidence the state will use to prove the conduct."
In the actual Grady case, the defendant had been involved in a fatal alcohol-related motor vehicle accident. The defendant had been given a traffic citation for driving while intoxicated. He pled guilty to the offense while neither the judge nor the prosecutor was aware of the fatality involved. When the state attempted to prosecute the defendant for reckless manslaughter, ultimately double jeopardy protected the defendant from being tried on the homicide charge. Even though Dixon overruled Grady, would a second trial arising from the same occurrence seem to be the type of vice which the double jeopardy clause was designed to prevent? Why or why not?
2. The prosecution would have had no trouble in Grady v. Corwin had the "left hand known what the right hand was doing." One prosecutor allowed defendant to plead guilty to a lower offense since she was unaware of the death in the accident. Should the defendant have enlightened the prosecutor? Do you believe that a defense attorney should have explained the complete story to the judge or prosecutor? Or is the defense counsel's duty primarily to the defendant and not to the interests of justice?
3. In another case involving an application of the Blockburger test to determine whether double jeopardy may prevent a second prosecution, the Court held that where only one of the crimes requires proof of a fact or element which the other does not, there are not two separate crimes. Brown v. Ohio, 432 U.S. 161 (1977), involved the crimes of automobile theft and a separate charge of joyriding in the same vehicle. Where the defendant had initially pled guilty to a misdemeanor charge of joyriding, a subsequent conviction in state court for auto theft violated the Fifth Amendment provision against double jeopardy. Under Ohio law joyriding was a lesser included offense under automobile theft because theft included all the elements of joyriding plus an additional mental state. Thus, for double jeopardy, both are the same crime.