Constitutional Law–Double Jeopardy–Collateral Estoppel Is Constitutionally Required in Criminal Cases Because It Is Embodied in the Fifth Amendment Double Jeopardy Clause–Ashe v. Swenson
It is, therefore, important in any analysis of the Ashe decision to examine the policies and purposes behind collateral estoppel and double jeopardy and the current effectiveness of the two doctrines in light of these policies and purposes. The policies of the double jeopardy guarantee are well defined in the federal cases. Basically, it is recognized that the state, having at hand many more resources than the average defendant can muster, should not be allowed to make successive attempts to convict an individual for an alleged offense. Successive prosecutions cause the defendant expense and embarrassment and force him to live in a state of insecurity knowing that the end of one trial may not necessarily be the end of his troubles. The state ought not to be allowed to retry a defendant for the purpose of finding the right combination of convincing evidence and a willing jury that will finally produce a conviction. Nor should the state be permitted to use the criminal process as a means of arbitrarily harassing an individual.