Justice Gorsuch continued: Ashe’s suggestion that the relitigating of an issue may amount to the impermissible relitigating of an offense represented a significant innovation in this Court’s jurisprudence. But whatever else may be said about Ashe, the Court has emphasized that its test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial. A second trial is not precluded simply because it is unlikely—or even very unlikely—that the original jury acquitted without finding the fact in question.
To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, the Court must be able to say that it would have been irrational for the jury in the first trial to acquit without finding in the defendant’s favor on a fact essential to a conviction in the second. Bearing all that in mind, a critical difference emerges between this case and Ashe: Even assuming that Mr. Currier’s second trial qualified as the retrial of the same offense under Ashe, he consented to the second trial. In Jeffers v. United States, 432 U. S. 137, where the issue was a trial on a greater offense after acquittal on a lesser included offense, the Court held that the Double Jeopardy Clause is not violated when the defendant “elects to have the . . . offenses tried separately and persuades the trial court to honor his election.” Id., at 152.
If consent can overcome a traditional double jeopardy complaint about a second trial for a greater offense, it must also suffice to overcome a double jeopardy complaint under Ashe’s more innovative approach. Holding otherwise would be inconsistent not only with Jeffers but with other cases too. See, e.g., United States v. Dinitz, 424 U. S. 600.
A preferable approach under the circumstances would have been to bifurcate the first trial, as opposed to requesting separate trials. A bifurcated trial is one in which the jury is asked to deliver a verdict on one offense, for example, the unlawful possession of a weapon. Only if they return a guilty verdict, are asked to consider the felon in possession of a weapon charge. If they return a “not guilty” verdict on the unlawful possession of a weapon charge, they necessarily acquit on the felon in possession of a weapon charge since possession of a weapon is a required element for a felon in possession of a weapon charge.
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