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Double Jeopardy, Due Process, and Evidence From Prior Acquittals: Dowling v. United States, 110 S. Ct. 668 (1990)

NCJ Number
Harvard Journal of Law and Public Policy Volume: 13 Issue: 3 Dated: (Summer 1990) Pages: 1027-1037
R A Goldstein
Date Published
11 pages
Although evidence from prior convictions has long been recognized as admissible in the subsequent trial of a criminal defendant, the admissibility of evidence from a previous acquittal has not been universally accepted; in the case of Dowling v. United States, the U.S. Supreme Court settled the debate by rejecting many objections commonly raised by defense attorneys to admitting previous acquittal evidence.
At Dowling's trial for bank robbery, the prosecution introduced evidence from a similar crime for which he had been been charged previously and acquitted. Dowling objected to admission of the evidence on two constitutional fronts, the double jeopardy and due process clauses of the fifth amendment. The Supreme Court refused to bar the evidence under either of these provisions and rejected Dowling's argument that admission of the evidence created a constitutionally unacceptable risk of an erroneous conviction on inferences drawn from the acquitted conduct. The Supreme Court decision made it clear that even when a defendant has been acquitted at a prior proceeding, little protection remains from inferences a prosecutor can create in the minds of jurors simply by referring to that proceeding. Therefore, rather than relying on constitutional arguments, defense attorneys must challenge the sufficiency of jury instructions. 48 footnotes