Currier v. Virginia (16-1348)
argument 16-1348Currier v. Virginia
Supreme Court of the United States
59 min
6 speakers
8 chapters
transcribed 5 days ago
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What is the dispute over severance requirements in Virginia versus Nevada?
We'll hear argument first this morning in Case 16-1348, Currier v. Virginia. Mr. Fisher.
Mr. Chief Justice, and may it please the Court, there's no dispute that if Virginia, like Nevada, required severance under the circumstances here, issue preclusion would be available with respect to the second trial. That much is dictated by Turner v. Arkansas.
Doesn't it? I'm sorry. Why do you say that? Meaning what Nevada says is no severance if both parties consent. So why isn't that exactly like Nevada? If you hadn't consented, severance would have been required, correct?
So my understanding of Nevada law, and just without getting into the weeds of exactly what any particular other state law than Virginia requires, but all I'm saying is if state law required severance under the circumstances here without respect to what the parties said. Well, it requires
severance unless both parties agree.
That's what Virginia law says. Right. Right. So I'm distinguishing Virginia law from a state like Nevada or a state like Arkansas and Turner that just simply demands severance, and it's not a good party. I don't know
why that's not the same.
Oh, we think it is the same, Your Honor. So what I'm trying to say is that In a state that demands severance, all agree, even my opponents agree, that issue of preclusion would be available.
That's Turner.
That's Turner.
All right.
So
Turner says that. Why is this any different?
I don't think it
is.
Okay. I don't think it is. And so the only question in this case, though, is whether the fact that Virginia law, as you say, Justice Sotomayor, allows both parties to agree to have a joint trial instead of the default of severance, whether that makes a difference. Well,
to sort of bracket this problem, what about a jurisdiction like the U.S. courts where severance is not required, where there says nothing about severance?
I think there's some variance, Your Honor, across the federal courts. But to take your
question of one like —
Well, we think the answer there would be the same as well, but I would concede it would be a slightly harder case. But the point, and there are two distinct reasons why consenting to severance in this situation, or even Justice Alito in the hypothetical you describe, should not waive the right to issue preclusion. First, the issue preclusion is a distinct right from the right against multiple trials. And simply consenting to separate trials is is not inconsistent with later invoking issue preclusion. In the second — It's that distinction that it's not like claim preclusion. In more academic than real, that is, in this case, suppose you're right and there can be no retrial of the breaking and entering or of the theft.
What's left? What would a prosecutor — Could a prosecutor realistically put on any case for the felony possession charge? I think, Justice Ginsburg, it might be a challenge in this case, but it is certainly not theoretical in every case. And not even necessarily in this case, depending on how the state would set out to prove the gun charges in the second trial. And I think this is brought out most clearly in the Wittig opinion that Judge Gorsuch, then Judge Gorsuch, wrote for the Tenth Circuit. And that opinion makes it very clear that what issue preclusion provides is the right, as the Court put it there, to be tried in a particular way. And so in some circumstances, like the Ash case itself, that is functionally going to bar the second trial.
But in other cases, like the Wittig case, there will be the opportunity for the government to go forward in the second trial. And that alone defeats the other side's waiver argument because inconsistency is required for waiver by conduct, and that's the holding of Jeffers and all the other double jeopardy cases they cite. But there
is no issue preclusion clause in the Constitution. There's the double jeopardy provision of the Fifth Amendment, which says that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. So isn't ASH — doesn't ASH simply provide one definition of
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Chapters
8 chapters
1
What is the dispute over severance requirements in Virginia versus Nevada?
0:00–7:44
2
How does issue preclusion differ from claim preclusion under the Double Jeopardy Clause?
7:44–14:30
3
Why does the Court consider consent to separate trials a waiver of double‑jeopardy rights?
14:30–21:41
4
What role do the Turner, Ash, and Yeager cases play in the preclusion analysis?
21:41–29:11
5
How might a colloquy about the consequences of severance affect the defendant’s rights?
29:11–36:06
6
When are bifurcated trials permissible and how do they impact issue preclusion?
36:06–44:24
7
What are the competing interests between the prosecution and the defendant in multiple‑trial scenarios?
44:24–52:39
8
How does the Court resolve whether the defendant’s agreement to severance bars a second trial?
52:39–59:38