# Ashe v. Swenson > Supreme Court of the United States · April 20, 1970 · 397 U.S. 436 URL: https://www.frixlaw.com/law-library/cases/9424230 ## Case - **Full name:** Ashe v. Swenson, Warden - **Court:** Supreme Court of the United States - **Decided:** April 20, 1970 - **Citations:** 397 U.S. 436; 90 S. Ct. 1189; 25 L. Ed. 2d 469; 1970 U.S. LEXIS 54 - **Precedential status:** Published - **Opinion:** Concurrence by Black - **Judges:** Stewart, Black, Harlan, Brennan, Bubger, Douglas, Marshall - **Cited by:** 3,645 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Declined to follow on other grounds by Dowling v. United States, 493 U.S. 342 (1990). - Negative treatments: 2 - Distinguished by: 17 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9424230 ## How later opinions describe it (automated extraction) - explaining that determining the preclusive effect of a prior judgment requires courts to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verd… - explaining that when judgment of acquittal is based on a general verdict, the reviewing tribunal must “examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge and other relevant matter, and conclude whether a rational jury could have g… - stating that when a previous judgment of acquittal is based on a general verdict, the court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded … - recognizing an issue preclusion component to the federal Double Jeopardy Clause and concluding that, when the defendant was acquitted for the robbery of one person based on the state’s failure to prove the defendant’s identity as one of the robbers, the state was precluded fro… - finding that once the first jury “had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the [same] r… ## Opinion text Mr. Justice Black, concurring. I join in the opinion of the Court although I must reject any implication in that opinion that the so-called due process test of “fundamental fairness” might have been appropriate as a constitutional standard at some point in the past or might have a continuing relevancy today in some areas of constitutional law. In my view it is a wholly fallacious idea that a judge’s sense of what is fundamentally “fair” or “unfair” should ever serve as a substitute for the explicit, written provisions of our Bill of Rights. One of these provisions is the Fifth Amendment’s prohibition against putting a man twice in jeopardy. On several occasions I have stated my view that the Double Jeopardy Clause bars a State or the Federal Government or the two together from subjecting a defendant to the hazards of trial and possible conviction more than once for the same alleged offense. Bartkus v. Illinois, 359 U. S. 121, 150 (1959) (dissenting opinion); Abbate v. United States, 359 U. S. 187, 201 (1959) (dissenting opinion); Ciucci v. Illinois, 356 U. S. *448 571, 575 (1958) (dissenting statement); Green v. United States, 355 U. S. 184 (1957). The opinion of the Court in the case today amply demonstrates that the doctrine of collateral estoppel is a basic and essential part of the Constitution’s prohibition against double jeopardy. Accordingly, for the reasons stated in the Court’s opinion I fully agree that petitioner’s conviction must be reversed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9424230. Public record. Not legal advice.