NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MICHAEL NELSON CURRIER, PETITIONER v.
on writ of certiorari to the supreme court of virginia
[June 22, 2018]
Justice Gorsuch announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Part III, in which The Chief Justice, Justice Thomas, and Justice Alito join.
About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury’s deliberations on others. To address the problem, he agreed to sever the charges and hold two trials instead of one. But after the first trial finished, Mr. Currier turned around and argued that proceeding with the second would violate his right against double jeopardy. All of which raises the question: can a defendant who agrees to have the charges against him considered in two trials later successfully argue that the second trial offends the
Fifth Amendment’s Double Jeopardy Clause?
This case began when police dredged up a safe full of guns from a Virginia river. Paul Garrison, the safe’s owner, had reported it stolen from his home. Before the theft, Mr. Garrison said, it contained not just the guns but also $71,000 in cash. Now, most of the money was missing. As the investigation unfolded, the police eventually found their way to Mr. Garrison’s nephew. Once confronted, the nephew quickly confessed. Along the way, he pointed to Michael Currier as his accomplice. A neighbor also reported that she saw Mr. Currier leave the Garrison home around the time of the crime. On the strength of this evidence, a grand jury indicted Mr. Currier for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. The last charge followed in light of Mr. Currier’s previous convictions for (as it happens) burglary and larceny.
Because the prosecution could introduce evidence of his prior convictions to prove the felon-in-possession charge, and worried that the evidence might prejudice the jury’s consideration of the other charges, Mr. Currier and the government agreed to a severance. They asked the court to try the burglary and larceny charges first. Then, they said, the felon-in-possession charge could follow in a second trial. Some jurisdictions routinely refuse requests like this. Instead, they seek to address the risk of prejudice with an instruction directing the jury to consider the defendant’s prior convictions only when assessing the felon-in-possession charge. See Brief for Indiana et al. as Amici Curiae
10. Other jurisdictions allow parties to stipulate to the defendant’s past convictions so the particulars of those crimes don’t reach the jury’s ears. Ibid
. Others take a more protective approach yet and view severance requests with favor. Id.,
at 11–12; see, e.g., Hackney
28 Va. App. 288, 294–296, 504 S.E.2d 385, 389 (1998) (en banc).
Because Virginia falls into this last group, the trial court granted the parties’ joint request in this case.
The promised two trials followed. At the first, the prosecution produced the nephew and the neighbor who testified to Mr. Currier’s involvement in the burglary and larceny.
But Mr. Currier argued that the nephew lied and the neighbor was unreliable and, in the end, the jury acquitted. Then, before the second trial on the firearm charge could follow, Mr. Currier sought to stop it. Now, he argued, holding a second trial would amount to double jeopardy. Alternatively and at the least, he asked the court to forbid the government from relitigating in the second trial any issue resolved in his favor at the first. So, for example, he said the court should exclude from the new proceeding any evidence about the burglary and larceny. The court replied that it could find nothing in the Double Jeopardy Clause requiring either result so it allowed the second trial to proceed unfettered. In the end, the jury convicted Mr. Currier on the felon-in-possession charge.
Before the Virginia Court of Appeals, Mr. Currier repeated his double jeopardy arguments without success. The court held that the “concern that lies at the core” of the Double Jeopardy Clause—namely, “the avoidance of prosecutorial oppression and overreaching through successive trials”—had no application here because the charges were severed for Mr. Currier’s benefit and at his behest. Currier
, 65 Va. App. 605, 609–613, 779 S.E.2d 834, 836–837 (2015). The Virginia Supreme Court summarily affirmed. Because courts have reached conflicting results on the double jeopardy arguments Mr. Currier pressed in this case, we granted certiorari to resolve them. 583 U. S. ___ (2017).
The Double Jeopardy Clause, applied to the States through the
Fourteenth Amendment, provides that no person may be tried more than once “for the same offence.” This guarantee recognizes the vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure the convictions they seek. See Green
v. United States
355 U. S. 187, 188 (1957). At the same time, this Court has said, the Clause was not written or originally understood to pose “an insuperable obstacle to the administration of justice” in cases where “there is no semblance of [these] type[s] of oppressive practices.” Wade
336 U. S. 684, 688–689 (1949).
On which side of the line does our case fall? Mr. Currier suggests this Court’s decision in Ashe
397 U. S. 436 (1970), requires a ruling for him. There, the government accused a defendant of robbing six poker players in a game at a private home. At the first trial, the jury acquitted the defendant of robbing one victim. Then the State sought to try the defendant for robbing a second victim. This Court held the second prosecution violated the Double Jeopardy Clause. Id.,
at 446. To be sure, the Clause speaks of barring successive trials for the same offense. And, to be sure, the State sought to try the defendant for a different
robbery. But, the Court reasoned, because the first jury necessarily found that the defendant “was not one of the robbers,” a second jury could not “rationally” convict the defendant of robbing the second victim without calling into question the earlier acquittal. Id.
, at 445–446. In these circumstances, the Court indicated, any relitigation of the issue whether the defendant parti- cipated as “one of the robbers” would be tantamount to the forbidden relitigation of the same offense resolved at the first trial. Id.,
at 445; see Yeager
v. United States
557 U. S. 110,
’s suggestion that the relitigation of an issue can sometimes amount to the impermissible relitigation of an offense represented a significant innovation in our jurisprudence. Some have argued that it sits uneasily with this Court’s double jeopardy precedent and the Constitution’s original meaning. See, e.g., Ashe
, at 460–461 (Burger, C. J., dissenting); Yeager
, at 127–128 (Scalia, J., dissenting). But whatever else may be said about Ashe
, we have emphasized that its test is a demanding one. Ashe
forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial. See Yeager
at 119–120; id.,
at 127 (Kennedy, J., concurring in part and concurring in judgment); id.,
at 133–134 (Alito, J., dissenting). A second trial “is not precluded simply because it is unlikely—or even very unlikely—that the original jury acquitted without finding the fact in question.” Ibid
. To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, we must be able to say that “it would have been irrational
for the jury” in the first trial to acquit without finding in the defendant’s favor on a fact essential to a conviction in the second. Id.,
at 127 (opinion of Kennedy, J.) (internal quotation marks omitted).
Bearing all that in mind, a critical difference immediately emerges between our case and Ashe
. Even assuming without deciding that Mr. Currier’s second trial qualified as the retrial of the same offense under Ashe
, he consented to it. Nor does anyone doubt that trying all three charges in one trial would have prevented any possible Ashe
complaint Mr. Currier might have had.
How do these features affect the double jeopardy calculus? A precedent points the way. In Jeffers
v. United States
432 U. S. 137 (1977), the defendant sought separate trials on each of the counts against him to reduce the possibility of prejudice. The court granted his request. After the jury convicted the defendant in the first trial of a lesser-included offense, he argued that the prosecution could not later try him for a greater offense. In any other circumstance the defendant likely would have had a good argument. Historically, courts have treated greater and lesser-included offenses as the same offense for double jeopardy purposes, so a conviction on one normally precludes a later trial on the other. Id.,
at 150–151 (plurality opinion); Brown
432 U. S. 161, 168–169 (1977) (collecting authorities). But, Jeffers
concluded, it’s different when the defendant consents to two trials where one could have done. If a single trial on multiple charges would suffice to avoid a double jeopardy complaint, “there is no violation of the Double Jeopardy Clause when [the defendant] elects to have the . . . offenses tried separately and persuades the trial court to honor his election.” 432 U. S., at 152.
What was true in Jeffers
, we hold, can be no less true here. If a defendant’s consent to two trials can overcome concerns lying at the historic core of the Double Jeopardy Clause, so too we think it must overcome a double jeopardy complaint under Ashe
. Nor does anything in Jeffers
suggest that the outcome should be different if the first trial yielded an acquittal rather than a conviction when a defendant consents to severance. While we acknowledge that Ashe
’s protections apply only to trials following acquittals, as a general rule, the Double Jeopardy Clause “ ‘protects against a second prosecution for the same offense after conviction’ ” as well as “ ‘against a second prosecution for the same offense after acquittal.’ ” Brown, supra,
at 165. Because the Clause applies equally in both situations, consent to a second trial should in general have equal effect in both situations.
Holding otherwise would introduce an unwarranted inconsistency not just with Jeffers
but with other precedents too. In United States
424 U. S. 600 (1976), for example, this Court held that a defendant’s mistrial motion implicitly invited a second trial and was enough to foreclose any double jeopardy complaint about it. In reaching this holding, the Court expressly rejected “the contention that the permissibility of a retrial depends on a knowing, voluntary, and intelligent waiver” from the defendant. Id.,
at 609 n. 11. Instead, it explained, none of the “prosecutorial or judicial overreaching” forbidden by the Constitution can be found when a second trial follows thanks to the defendant’s motion. Id.
at 607. In United States
437 U. S. 82 (1978), this Court likewise held that a defendant’s motion effectively invited a retrial of the same offense, and “the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of [a] voluntary choice” like that. Id.,
at 96, 99; see also Evans
568 U. S. 313, 326 (2013) (“[R]etrial is generally allowed [when] the defendant consents to a disposition that contemplates reprosecution”). While relinquishing objections sometimes turns on state or federal procedural rules, these precedents teach that consenting to two trials when one would have avoided a double jeopardy problem precludes any constitutional violation associated with holding a second trial. In these circumstances, our cases hold, the defendant wins a potential benefit and experiences none of the prosecutorial “oppression” the Double Jeopardy Clause exists to prevent. Nor, again, can we discern a good reason to treat Ashe
double jeopardy complaints more favorably than traditional ones when a defendant consents to severance.
Against these precedents, Mr. Currier asks us to consider others, especially Harris
404 U. S. 55 (1971) (per curiam
) and Turner
407 U. S. 366 (1972) (per curiam
). But these cases merely applied Ashe
’s test and concluded that a second trial was impermissible. They did not address the question whether double jeopardy protections apply if the defendant consents
to a second trial. Meanwhile, as we’ve seen, Jeffers
, and Scott
focus on that question directly and make clear that a defendant’s consent dispels any specter of double jeopardy abuse that holding two trials might otherwise present. This Court’s teachings are consistent and plain: the “Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” Scott
, at 99.
Mr. Currier replies that he had no real choice but to seek two trials. Without a second trial, he says, evidence of his prior convictions would have tainted the jury’s consideration of the burglary and larceny charges. And, he notes, Virginia law guarantees a severance in cases like his unless the defendant and prosecution agree to a single trial. But no one disputes that the Constitution permitted Virginia to try all three charges at once with appropriate cautionary instructions. So this simply isn’t a case where the defendant had to give up one constitutional right to secure another. Instead, Mr. Currier faced a lawful choice between two courses of action that each bore potential costs and rationally attractive benefits. It might have been a hard choice. But litigants every day face difficult decisions. Whether it’s the defendant who finds himself in the shoes of Jeffers,
Scott and forced to choose between allowing an imperfect trial to proceed or seeking a second that promises its own risks. Or whether it’s the defendant who must decide between exercising his right to testify in his own defense or keeping impeachment evidence of past bad acts from the jury. See, e.g., Brown
v. United States
356 U. S. 148, 154–157 (1958). This Court has held repeatedly that difficult strategic choices like these are “not the same as no choice,” United States
528 U. S. 304, 315 (2000), and the Constitution “does not . . . forbid requiring” a litigant to make them, McGautha
402 U. S. 183, 213 (1971).
Even if he voluntarily consented to holding the second trial, Mr. Currier argues, that consent did not extend to the relitigation of any issues the first jury resolved in his favor. So, Mr. Currier says, the court should have excluded evidence suggesting he possessed the guns in Mr. Gar- rison’s home, leaving the prosecution to prove that he possessed them only later, maybe down by the river. To support this argument, Mr. Currier points to issue preclusion principles in civil cases and invites us to import them for the first time into the criminal law through the Double Jeopardy Clause. In his view, the Clause should do much more than bar the retrial of the same offense (or crimes tantamount to the same offense under Ashe
); it should be read now to prevent the parties from retrying any issue or introducing any evidence about a previously tried issue. While the dissent today agrees with us that the trial court committed no double jeopardy violation in holding the second trial, on this alternative argument it sides with Mr. Currier. See post,
at 11, 12, 14–15.
We cannot. Even assuming for argument’s sake that Mr. Currier’s consent to holding
a second trial didn’t more broadly imply consent to the manner
it was conducted, we must reject his argument on a narrower ground. Just last Term this Court warned that issue preclusion principles should have only “guarded application . . . in criminal cases.” Bravo-Fernandez
v. United States
, 580 U. S. ___, ___ (2016) (slip op. at 4). We think that caution remains sound.
Mr. Currier’s problems begin with the text of the Double Jeopardy Clause. As we’ve seen, the Clause speaks not about prohibiting the relitigation of issues or evidence but offenses. Contrast this with the language of the Reexamination Clause. There, the
Seventh Amendment says that “[i]n Suits at common law . . . no fact
tried by a jury, shall be otherwise re-examined
in any Court of the United States, than according to the rules of the common law.” (Emphasis added.) Words in one provision are, of course, often understood “by comparing them with other words and sentences in the same instrument.” 1 J. Story, Commentaries on the Constitution of the United States §400, p. 384 (1833). So it’s difficult to ignore that only in the
Seventh Amendment—and only for civil suits—can we find anything resembling contemporary issue preclusion doctrine.
What problems the text suggests, the original public understanding of the
Fifth Amendment confirms. The Double Jeopardy Clause took its cue from English common law pleas that prevented courts from retrying a criminal defendant previously acquitted or convicted of the crime in question. See Scott
, 437 U. S., at 87; 4 W. Blackstone, Commentaries on the Laws of England 329–330 (1769). But those pleas barred only repeated “prosecution for the same identical act and
crime,” not the retrial of particular issues or evidence. Id.,
at 330 (emphasis added). As Sir Matthew Hale explained:
commit a burglary . . . and likewise at the same time steal goods out of the house, if he be indicted of larciny for the goods and acquitted, yet he may be indicted for the burglary notwithstanding the acquittal. And è converso
, if indicted for the burglary and acquitted, yet he may be indicted of the larciny, for they are several offenses, tho committed at the same time.” 2 M. Hale, The History of the Pleas of the Crown, ch. 31, pp. 245–246 (1736 ed.).
Both English and early American cases illustrate the point. In Turner’s Case
, 30 Kel. J. 30, 84 Eng. Rep. 1068 (K. B. 1663), for example, a jury acquitted the defendant of breaking into a home and stealing money from the owner. Even so, the court held that the defendant could be tried later for the theft of money “stolen at the same time” from the owner’s
. In Commonwealth
, 12 Pickering 496 (Mass. 1832), the court, invoking Blackstone, held that “[i]n considering the identity of the of- fence, it must appear by the plea, that the offence charged in both cases was the same in law
and in fact
at 509. The court explained that a second prosecution isn’t precluded “if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact
(emphasis added). Another court even ruled “that a man acquitted for stealing the horse hath yet been arraigned and convict for stealing the saddle, tho both were done at the same time.” 2 Hale, supra,
at 246. These authorities and many more like them demonstrate that early courts regularly confronted cases just like ours and expressly rejected the notion that the Double Jeopardy Clause barred the relitigation of issues or facts. See also Grady
495 U. S. 508, 533–535 (1990) (Scalia, J., dissenting) (collecting authorities); 2 W. Hawkins, Pleas of the Crown, ch. 35, p. 371 (1726 ed.); 1 J. Chitty, Criminal Law 452–457 (1816); M. Friedland, Double Jeopardy 179, and n. 2 (1969). Any suggestion that our case presents a new phenomenon, then, risks overlooking this long history. See post,
at 4–5 (Ginsburg, J., dissenting).
This Court’s contemporary double jeopardy cases confirm what the text and history suggest. Under Blockburger
v. United States
284 U. S. 299 (1932), the courts apply today much the same double jeopardy test they did at the founding. Id.,
at 304. To prevent a second trial on a new charge, the defendant must show an identity of statutory elements
between the two charges against him; it’s not enough that “a substantial overlap [exists] in the proof
offered to establish the crimes.” Iannelli
v. United States
420 U. S. 770, 785, n. 17 (1975) (emphasis added). Of course, Ashe
later pressed Blockburger
’s boundaries by suggesting that, in narrow circumstances, the retrial of an issue can be considered tantamount to the retrial of an offense. See Yeager,
557 U. S., at 119. But, as we’ve seen, even there a court’s ultimate focus remains on the practi- cal identity of offenses, and the only available remedy is the traditional double jeopardy bar against the retrial of the same offense—not a bar against the relitigation of issues or evidence. See id.,
at 119–120. Even at the outer reaches of our double jeopardy jurisprudence, then, this Court has never sought to regulate the retrial of issues or evidence in the name of the Double Jeopardy Clause.
Nor in acknowledging this do we plow any new ground. In Dowling
v. United States
493 U. S. 342 (1990), the defendant faced charges of bank robbery. At trial, the prosecution introduced evidence of the defendant’s involvement in an earlier crime, even though the jury in that case had acquitted. Like Mr. Currier, the defendant in Dowling
argued that the trial court should have barred relitigation of an issue resolved in his favor in an earlier case and therefore excluded evidence of the acquitted offense. But the Court refused the request and in doing so expressly “decline[d] to extend Ashe
. . . to exclude in all circumstances, as [the defendant] would have it, relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” Id.
, at 348. If a second trial is permissible, the admission of evidence at that trial is governed by normal evidentiary rules—not by the terms of the Double Jeopardy Clause. “So far as merely evidentiary . . . facts are concerned,” the Double Jeopardy Clause “is inoperative.” Yates
v. United States
354 U. S. 298, 338 (1957).
On its own terms, too, any effort to transplant civil preclusion principles into the Double Jeopardy Clause would quickly meet trouble. While the Clause embodies a kind of “claim preclusion” rule, even this rule bears little in common with its civil counterpart. In civil cases, a claim generally may not be tried if it arises out of the same transaction or common nucleus of operative facts as another already tried. Restatement (Second) of Judg- ments §19 (1982); Moschzisker, Res Judicata, 38 Yale L. J. 299, 325 (1929). But in a criminal case, Blockburger
precludes a trial on an offense only if a court has previously heard the same offense as measured by its statutory elements. 284 U. S., at 304. And this Court has emphatic- ally refused to import into criminal double jeopardy law the civil law’s more generous “same transaction” or same criminal “episode” test. See Garrett
v. United States
471 U.S. 773
, 790 (1985); see also Ashe,
397 U. S., at 448 (Harlan, J., concurring).
It isn’t even clear that civil preclusion principles would help defendants like Mr. Currier. Issue preclusion addresses the effect in a current case of a prior adjudication in another case
. So it doesn’t often have much to say about the preclusive effects of rulings “within the framework of a continuing action.” 18A C. Wright & A. Miller, Federal Practice and Procedure §4434 (2d ed. 2002); see also id.
, §4478. Usually, only the more flexible law of the case doctrine governs the preclusive effect of an earlier decision “within a single action.” Ibid.
And that doctrine might counsel against affording conclusive effect to a prior jury verdict on a particular issue when the parties agreed
to hold a second trial covering much the same terrain at a later stage of the proceedings. Besides, even if issue preclusion is the right doctrine for cases like ours, its application usually depends “on ‘an underlying confidence that the result achieved in the initial litigation was substantially correct.’ ” Bravo-Fernandez
, 580 U. S., at ___ (slip op., at 4) (quoting Standefer
v. United States
447 U. S. 10, 23, n. 18 (1980)). As a result, the doctrine does not often bar the relitigation of issues when “[t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action.” Restatement (Second) of Judgments
§28. In criminal cases, of course, the government cannot obtain appellate review of acquittals. So a faithful application of civil preclusion principles in our case and others like it might actually militate against
finding preclusion. See Bravo-Fernandez
at ___ (slip op., at 4); Standefer
, at 22–23, and n. 18.
Neither Mr. Currier nor the dissent offers a persuasive reply to these points. They cannot dispute that the text of the Double Jeopardy Clause, which bars a prosecution for the same offense, is inconsistent with an issue preclusion rule that purports to bar a “second prosecution involv[ing] . . . a different ‘offense.’ ” Post,
at 4. They decline to “engage” with the Clause’s history, though the dissent appears to agree that the Clause was not originally understood to include an issue preclusion rule. See post,
at 3–4, 13. Neither Mr. Currier nor the dissent seeks to show that, even taken on their own terms, civil issue preclusion principles would apply to cases like this one. Without text, history, or logic to stand on, the dissent leans heavily on a comparison to Dowling
. In Dowling
, the dissent emphasizes, the two trials involved different criminal episodes while the two trials here addressed the same set of facts. But Dowling
did not rest its holding on this feature and the dissent does not explain its relevance. If issue preclusion really did exist in criminal law, why wouldn’t it preclude the retrial of any
previously tried issue, regardless whether that issue stems from the same or a different “criminal episode”?
In the end, Mr. Currier and the dissent must emphasize various policy reasons for adopting a new rule of issue preclusion into the criminal law. See post,
at 4–5, 8–9. They contend that issue preclusion is “needed” to combat the “prosecutorial excesses” that could result from the proliferation of criminal offenses, post,
at 4–5, though we aren’t sure what to make of this given the dissent’s later claim that “issue preclusion requires no showing of prosecutorial overreaching,” post,
at 8. In any event, there are risks with the approach Mr. Currier and the dissent pro- pose. Consider, for example, the ironies that grafting civil preclusion principles onto the criminal law could invite. Issue preclusion is sometimes applied offensively against civil
defendants who lost on an issue in an earlier case. Parklane Hosiery Co.
439 U. S. 322, 331–332 (1979). By parallel logic, could we expect the government to invoke the doctrine to bar criminal defendants from relitigating issues decided against them in a prior trial? It’s an outcome few defendants would welcome but one some have already promoted. See, e.g.,
Kennelly, Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases, 80 Va. L. Rev. 1379, 1380–1381, 1416, 1426–1427 (1994); Vestal, Issue Preclusion and Criminal Prosecutions, 65 Iowa L. Rev. 281, 297, 320–321 (1980).
Maybe worse yet, consider the possible effect on severances. Today, some state courts grant severance motions liberally to benefit defendants. But what would happen if this Court unilaterally increased the costs associated with severance in the form of allowing issue preclusion for defendants only? Granting a severance is no small thing. It means a court must expend resources for two trials where the Constitution would have permitted one. Witnesses and victims must endure a more protracted ordeal. States sometimes accept these costs to protect a defendant from potential prejudice. But 20 States appearing before us have warned that some jurisdictions might respond to any decision increasing the costs of severed trials by making them less freely available. See Brief for Indiana et al. as Amici Curiae
4, 16–20. Of course, that’s only a prediction. But it’s a hard if unwanted fact that “[t]oday’s elaborate body of procedural rules” can contribute to making “trials expensive [and] rare.” W. Stuntz, The Collapse of American Criminal Justice 39 (2011). And it would be a mistake to ignore the possibility that by making severances more costly we might wind up making them rarer too.
The fact is, civil preclusion principles and double jeop- ardy are different doctrines, with different histories, serving different purposes. Historically, both claim and issue preclusion have sought to “promot[e] judicial economy by preventing needless litigation.” Parklane Hosiery
at 326. That interest may make special sense in civil cases where often only money is at stake. But the Double Jeopardy Clause and the common law principles it built upon govern criminal
cases and concern more than efficiency. They aim instead, as we’ve seen, to balance vital interests against abusive prosecutorial practices with consideration to the public’s safety. The Clause’s terms and history simply do not contain the rights Mr. Currier seeks.
Nor are we at liberty to rewrite those terms or that history. While the growing number of criminal offenses in our statute books may be cause for concern, see post,
at 4–5 (Ginsburg, J., dissenting), no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive. The proper authorities, the States and Congress, are empowered to adopt new laws or rules experimenting with issue or claim preclusion in criminal cases if they wish. In fact, some States have already done so. On these matters, the Constitution dictates no answers but entrusts them to a self-governing people to resolve.
The judgment of the Virginia Supreme Court is