If the Convictions Don’t Fit, You Must Acquit: Examining the Constitutional Limitations on the State’s Pursuit of Inconsistent Criminal Prosecutions


This article provides a novel approach to the phenomenon of inconsistent prosecutions, which occur when the State’s assertions in one case conflict with or directly contradict its assertions in a separate case arising out of the same transaction or occurrence. Resolution of this issue has become pressing due to the likelihood that the United States Supreme Court will soon be asked to review the Sixth Circuit Court of Appeals’ decision in Stumpf v. Houk. The lower courts have almost uniformly reasoned that inconsistent prosecutions may violate a defendant’s procedural due process right to a fundamentally fair trial if the prosecution’s inconsistencies go “to the core” of the State’s case.

This article rejects the fair trial framework for evaluating inconsistent prosecutions, which holds that the fundamental fairness of a defendant’s trial cannot logically be affected by the State’s actions in a separate, procedurally independent trial. In its place, this article offers substantive due process as a viable legal theory, since this constitutional protection bars certain governmental action regardless of the process afforded. This article concludes that maintaining truly incompatible convictions and sentences violates substantive due process under the “shocks the conscience” test. By its own irreconcilable actions, the government has undone the presumptions of guilt that traditionally attach to defendants following conviction. Thus, for the State to knowingly place its imprimatur on at least one wrongful conviction is arbitrary in the constitutional sense.

This article then sketches potential remedies for when a court finds a substantive due process violation. If there is no inference that the defendants collaborated in the crime, both convictions must be overturned and the State must choose which defendant to pursue on retrial. Co-defendants, where possible, should be retried jointly for the jury to properly assess each defendant’s role in the offense and to reach a coherent outcome.

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