Michigan v. Treshaun Lee Terrance

STATEMENT OF THE QUESTIONS Respondent was charged with premeditated murder and felony murder (with torture as the predicate) for the suffocation death of his live-in girlfriend. A jury acquitted him of count one but could not reach a verdict on count two. Before the retrial on count two, Respondent pleaded guilty to a reduced charge of second-degree murder. The trial court had to vacate the conviction, however, because under federal issue preclusion doctrine, the jury’s not-guilty verdict on count one precluded retrial on count two. The Michigan Court of Appeals later held that issue preclusion also barred retrial on the torture predicate because the count-one acquittal necessarily determined that Respondent was not the perpetrator. There are three questions:

1. Since issue preclusion is a civil doctrine and not originally part of the double jeopardy clause, should it apply in criminal cases? Should Ashe v Swenson be overturned?

2. Since issue preclusion only applies when a jury has necessarily decided an issue, should the fact that the jury hung on that issue in another count defeat the doctrine’s application? Should Yeager v US be overturned? (i)