William J. Brennan

Name: Ashe v. Swenson — Concurrence
Author: William J. Brennan

Summary

“Ashe v. Swenson — Concurrence”, is a work by William J. Brennan. It explores elements such as prosecution, same transaction and joinder of charges.

Quotes from Ashe v. Swenson — Concurrence (William J. Brennan)

William J. Brennan, Ashe v. Swenson — Concurrence

“ Flexibility in the rules governing the structure of civil litigation is appropriate in order to give the parties the opportunity to shape their own private lawsuits, provided that injustice, harassment, or an undue burden on the courts does not result. Some flexibility in the structuring of criminal litigation is also desirable and consistent with our traditions. But the Double Jeopardy Clause stands as a constitutional barrier against possible tyranny by the overzealous prosecutor. ”

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Source: Wikisource

William J. Brennan, Ashe v. Swenson — Concurrence

“ Abuse of the criminal process is foremost among the feared evils that led to the inclusion of the Double Jeopardy Clause in the Bill of Rights. That evil will be most effectively avoided, and the Clause can thus best serve its worthy ends, if 'same offence' is construed to embody the 'same transaction' standard. Then both federal and state prosecutors will be prohibited from mounting successive prosecutions for offenses growing out of the same criminal episode, at least in the absence of a showing of unavoidable necessity for successive prosecutions in the particular case. ”

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Source: Wikisource

William J. Brennan, Ashe v. Swenson — Concurrence

“ Given the tendency of modern criminal legislation to divide the phrases of a criminal transaction into numerous separate crimes, the opportunities for multiple prosecutions for an esentially unitary criminal episode are frightening. And given our tradition of virtually unreviewable prosecutorial discretion concerning the initiation and scope of a criminal prosecution, [3] the potentialities for abuse inherent in the 'same evidence' test are simply intolerable. ”

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Source: Wikisource

William J. Brennan, Ashe v. Swenson — Concurrence

“ The considerations of justice, economy, and convenience that have propelled the movement for consolidation of civil cases apply with even greater force in the criminal context because of the constitutional principle that no man shall be vexed more than once by trial for the same offense. [12] Yet, if the Double Jeopardy Clause were interpreted by this Court to incorporate the 'same evidence' test, criminal defendants would have less protection from multiple trials than civil defendants. ”

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Source: Wikisource

William J. Brennan, Ashe v. Swenson — Concurrence

“ Although in 1935 the American Law Institute adopted the 'same evidence' test, it has since replaced it with the 'same transaction' test. [9] England, too, has abandoned its surviving rules against joinder of charges and has adopted the 'same transaction' test. [10] The Federal Rules of Criminal Procedure liberally encourage the joining of parties and charges in a single trial. Rule 8 (a) provides for joinder of charges that are similar in character, or arise from the same transaction or from connected transactions or form part of a common scheme or plan. ”

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Source: Wikisource

William J. Brennan, Ashe v. Swenson — Concurrence

“ The 'same evidence' test of 'same offence' was soon followed by a majority of American jurisdictions, but its deficiencies are obvious. It does not enforce but virtually annuls the constitutional guarantee. For example, where a single criminal episode involves several victims, under the 'same evidence' test a separate prosecution may be brought as to each. ”

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Source: Wikisource

William J. Brennan, Ashe v. Swenson — Concurrence

“ Rule 8 (b) provides for joinder of defendants. Rule 13 provides for joinder of separate indictments or informations in a single trial where the offenses alleged could have been included in one indictment or information. [11] These rules represent considered modern thought concerning the proper structuring of criminal litigation.
The same thought is reflected in the Federal Rules of Civil Procedure. A pervasive purpose of those Rules is to require or encourage the consolidation of related claims in a single lawsuit. ”

William J. Brennan

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