Acquittals in Jeopardy: Criminal Collateral Estoppel and the Use of Acquitted Act Evidence

Abstract

A man is tried for attempting to rob a home while using a mask and gun. In spite of the victim's positive identification, he is acquitted. Later, he is brought to trial for a bank robbery committed with a mask and gun. At the second trial, the prosecution introduces evidence of the first robbery to prove defendant's identity as the masked man.' Persuaded that the defendant is a habitual criminal, the jury convicts. The judge, taking evidence of the earlier robbery into account during sentencing, imposes a harsher sentence.2 Was this defendant tried and punished for a crime for which he had already been acquitted? If so, should the Double Jeopardy Clause protect him? These questions, long debated in the lower courts,3 were recently addressed by the Supreme Court in Dowling