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Abstract. Since its 1970 decision in Ashe v. Swenson, the U.S. Supreme Court has recognized issue preclusion as part of the constitutional guarantee against double jeopardy. Ashe held that where an acquittal necessarily involved deciding a factual issue in the defendant's favor, the Double Jeopardy Clause of the Fifth Amendment prevents the prosecution from relitigating that issue in any subsequent trial. In recent years, several Justices have expressed doubts about whether Ashe is consistent with the original meaning of the Double Jeopardy Clause. This Note fills a gap in the academic literature by taking up that question.
This Note argues that the judgment in Ashe, but not the issue preclusion rationale on which it rests, is consistent with the original meaning of the Double Jeopardy Clause. The text, drafting history, and early judicial interpretations of the Clause indicate that it codified an English common law right. Seventeenth- and eighteenth-century sources reveal the content of that right: At common law, two crimes were considered "the same" for double jeopardy purposes only if (1) the charged offenses were identical or one was a lesser included offense of the other; and (2) they rested on the same factual allegations. This historical evidence shows that the issue preclusion rule announced in Ashe was not part of the original guarantee against double jeopardy. But it also shows that the common law did not allow what the State attempted in Ashe-subjecting a criminal defendant to multiple trials for a single crime simply because the crime involved multiple victims.
Introduction
Early one morning in January 1960, six men were playing "a friendly game of poker" in the basement of a private home in Lee's Summit, Missouri.1 Suddenly, a group of armed criminals broke into the house.2 They made their way to the basement, "robbed each of the poker players of money and various articles of personal property," and then "fled in a car belonging to one of the victims."3 Bob Ashe, along with three other suspects, was later arrested and charged with six counts of first-degree robbery-one for each poker player-as well as one count of auto theft.4
The State decided to prosecute each charge separately. First, it put Ashe on trial for robbing just one of the poker players, a...