Opinion

Justice O'CONNOR, dissenting.

I agree with much of what Justice SCALIA says in his dissenting opinion. I write separately, however, to note that my dissent is premised primarily on my view that the inconsistency between the Court's opinion today and Dowling v. United States, 493 U. S. 342 (1990), decided earlier this Term, indicates that the Court has strayed from a proper interpretation of the scope of the Double Jeopardy Clause.

In Dowling, we considered whether an eyewitness' testimony regarding a robbery for which Dowling had been acquitted was admissible at a second trial of Dowling for an unrelated robbery. The eyewitness had testified at the first trial that a man had entered her house "wearing a knitted mask with cutout eyes and carrying a small handgun" and that his mask had come off during a struggle, revealing his identity. Id. at 493 U. S. 344. Based on this evidence, Dowling had been charged with burglary, attempted robbery, assault, and weapons offenses, but was acquitted of all charges. At a second trial for an unrelated bank robbery, the government attempted to use the witness' testimony to prove Dowling's identity as a robber. We held that the Double Jeopardy Clause did not bar the introduction of the evidence: because the prior acquittal did not necessarily represent a jury determination that Dowling was not the masked man who had entered the witness' home, the testimony was admissible in the second trial to prove identity. Id. at 493 U. S. 348 -352.

The Court's ruling today effectively renders our holding in Dowling a nullity in many circumstances. If a situation identical to that in Dowling arose after today's decision, a conscientious judge, attempting to apply the test enunciated by the Court, ante at 495 U. S. 510, 495 U. S. 521, would probably conclude that the witness' testimony was barred by the Double Jeopardy Clause. The record in Dowling indicated that the Government was offering the eyewitness testimony to establish the defendant's identity, "an essential element of an offense charged in [the subsequent] prosecution," ante at 495 U. S. 521, and that the testimony would likely "prove conduct that constitutes an offense for which the defendant has already been prosecuted." Ibid. See App. in Dowling v. United States, O.T. 1989, No. 88-6025, pp. 15-29. Under the Court's reasoning, the Government's attempt to introduce the eyewitness testimony would bar the second prosecution of Dowling for bank robbery. As a practical matter, this means that the same evidence ruled admissible in Dowling is barred by Grady.

The Court's decision is also inconsistent with Dowling's approach to longstanding rules of evidence. Although we declined in Dowling to adopt a reading of the Double Jeopardy Clause that would "exclude in all circumstances... relevant and probative evidence that is otherwise admissible" under Federal Rule of Evidence 404(b) and other Federal Rules of Evidence, 493 U.S. at 493 U. S. 348, the wide sweep of the Court's decision today casts doubt on the continued vitality of Rule 404(b), which makes evidence of "other crimes" admissible for proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

In my view, Dowling correctly delineated the scope of the Double Jeopardy Clause's protection. Accordingly, the inconsistency between our decision in Dowling and the Court's decision today leads me to reject the Court's expansive interpretation of the Clause. I respectfully dissent.