Can Virginia retry a defendant whose conviction was reversed because some evidence was wrongly admitted, when the rest of the trial evidence would still support the conviction?

Plain-English summary

In 2012, the Virginia Supreme Court decided Rushing v. Commonwealth. The defendant had been convicted of gang participation. On appeal, the Court found that some evidence used to prove a predicate gang offense had been improperly admitted. Following the Virginia rule from Crawford v. Commonwealth (2011), the Court evaluated sufficiency without the improperly admitted evidence. The remaining evidence was insufficient, so the Court entered final judgment of acquittal, with the effect that the defendant could not be retried.

This created a tension with U.S. Supreme Court doctrine. Under Lockhart v. Nelson (1988) and Burks v. United States (1978), federal courts evaluate sufficiency on all admitted evidence (including the parts later held to have been improperly admitted) when deciding whether a retrial is permissible. The reasoning: a reversal for ordinary trial error (like an evidentiary mistake) does not bar retrial under the Double Jeopardy Clause, while a reversal for true evidentiary insufficiency does. By stripping out the improperly admitted evidence to assess sufficiency, Virginia was awarding finality (acquittal-equivalent) in situations where federal law would have allowed retrial.

The General Assembly in 2013 enacted HB 2338, codifying a new Va. Code § 19.2-324.1. The new statute instructs appellate courts to consider all evidence admitted at trial in sufficiency analysis, and to remand for a new trial (if the Commonwealth elects) when erroneously admitted evidence requires reversal but the all-evidence record supports the conviction.

Delegate Surovell asked the AG whether this overrode Rushing in a way that violated double jeopardy or whether the change required a constitutional amendment.

The AG concluded that the statute was constitutional and no amendment was needed.

Double jeopardy. The federal Double Jeopardy Clause permits the government to retry a defendant whose conviction is reversed for ordinary trial error. The narrow Burks exception (no retrial when reversal is "on the sole ground that the evidence was insufficient") does not apply when the appellate court considers all admitted evidence and finds it sufficient. The reasoning is policy-driven: requiring acquittal whenever a trial error infects a conviction would impose a high cost on society and might paradoxically reduce defendants' protection at trial (appellate courts would be reluctant to find errors if every finding meant the defendant walked free regardless of guilt). Section 19.2-324.1 follows this federal framework exactly. Virginia's constitutional double jeopardy protections are coextensive with the federal protections, so the same analysis applies under Va. Const. art. I, § 8.

Rushing was not a constitutional holding. The Virginia Supreme Court in Rushing was explicit (in footnotes 4 and 5) that it was deciding only "questions of the interpretation of Virginia statutes, Virginia appellate procedure, and Virginia's rules of evidence," and that it was not reaching the constitutional question. Because Rushing rested on subconstitutional grounds, the General Assembly was free to change the rules by statute. The General Assembly's power to modify court-adopted rules is itself recognized in Va. Code § 8.01-3.

No amendment needed. Since Rushing was not constitutional, no constitutional amendment was required to displace it. The General Assembly's broad authority under Va. Const. art. IV, § 14 permitted enactment of a procedural rule by ordinary legislation.

The AG closed with a comparative argument: the remedy for violation of the Sixth Amendment confrontation right is a new trial; the remedy for ineffective assistance of counsel is a new trial; the remedy for a Fifth Amendment self-incrimination violation is a new trial without the offending statement. None of those situations creates double-jeopardy bars to retrial. So a violation of a state evidence rule (the Rushing scenario) cannot get the defendant more (a permanent bar to retrial) than violation of a constitutional right would.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, Va. Code § 19.2-324.1 may have been renumbered or amended since 2013. Anyone researching the current state of Virginia appellate sufficiency review should check the current statute text and subsequent case law.

Common questions

What does § 19.2-324.1 say?
On appeal, when a defendant challenges a conviction by claiming the evidence was insufficient because the trial court improperly admitted evidence, the reviewing court must consider all evidence admitted at trial in evaluating sufficiency. If the appellate court finds the evidence was wrongly admitted and the error was not harmless, the case is remanded for a new trial if the Commonwealth chooses to retry.

What's the difference between insufficient evidence and trial error?
An insufficient-evidence reversal means "even with all the evidence the prosecution presented, no rational jury could find guilt." That is a determination about the prosecution's case, equivalent to acquittal, and the Double Jeopardy Clause bars retrial.

A trial-error reversal means "the prosecution's case might be strong enough, but the trial was procedurally defective." Examples: wrongly admitted evidence, jury instruction errors, evidentiary rulings. That is not equivalent to acquittal, and retrial is permitted.

Why does this distinction matter?
Because the Double Jeopardy Clause's "no twice in jeopardy" rule applies fully to acquittal-equivalent results but not to procedural-defect reversals. A defendant gets one full crack at the prosecution's case; if the prosecution's evidence is genuinely insufficient, the defendant walks. But the defendant doesn't also get a free pass when the trial had a fixable error.

What was Rushing trying to do?
Rushing applied a Virginia-law rule (from Crawford) that excluded improperly admitted evidence when evaluating sufficiency. This had the practical effect of converting some trial-error reversals into acquittal-equivalent results, giving defendants a no-retrial benefit that federal law would not have given them.

Is § 19.2-324.1 retroactive?
The statute applies to "appeals to the Court of Appeals or the Supreme Court." For cases on direct review after July 1, 2013, the statute governs. The opinion didn't address application to cases that had already been finally decided.

What is "harmless error"?
A wrongly admitted piece of evidence is "harmless" if its admission did not affect the outcome of the trial. Section 19.2-324.1 only allows a remand for retrial when the error was not harmless; harmless errors don't justify reversal in the first place.

Could the General Assembly have done this without overriding Rushing?
Not really. The whole point of HB 2338 was to align Virginia practice with federal Lockhart/Burks doctrine, which required overruling the Rushing/Crawford rule. The General Assembly could not have achieved that result without legislating on the rule.

Does this opinion bind courts?
No. AG opinions are persuasive authority, not binding precedent. Whether § 19.2-324.1 is constitutional is ultimately a question for the courts.

Background and statutory framework

The statutory and constitutional context:

• Va. Code § 19.2-324.1 (codified from 2013 Va. Acts ch. 675, HB 2338): the new statutory rule for sufficiency review.
• Va. Code § 8.01-3: the General Assembly's power to modify court-adopted procedural rules.
• Va. Const. art. I, § 8: the state double jeopardy protection.
• Va. Const. art. IV, § 14: the General Assembly's broad legislative power.
• Va. Const. art. IV, § 13: standard July 1 effective date for legislation.
• U.S. Const. amend. V: federal Double Jeopardy Clause.

Federal doctrine the AG drew on:

• Burks v. United States (1978): no retrial when conviction reversed solely for insufficient evidence.
• Lockhart v. Nelson (1988): all admitted evidence (including improperly admitted) considered in sufficiency analysis; retrial allowed after trial-error reversal.
• McDaniel v. Brown (2010): reaffirmed the all-admitted-evidence approach.
• Tibbs v. Florida (1982): explained the Burks exception's narrow scope.
• Jackson v. Virginia (1979): standard of review for sufficiency (all evidence in light most favorable to prosecution).
• Tateo v. United States (1964): policy reasons for permitting retrial after error-based reversal.

Virginia doctrine before HB 2338:

• Rushing v. Commonwealth (2012): applied Crawford rule to exclude erroneously admitted evidence from sufficiency analysis.
• Crawford v. Commonwealth (2011): announced the rule that improperly admitted evidence is not considered in appellate sufficiency review.

The interpretive moves:

• Virginia double jeopardy protections coextensive with federal, so the federal cases control the constitutional analysis (Stephens, Martin, DiGiacinto).
• A state's prerogative to give greater protections than federal law (Moore) is not engaged here because Virginia has chosen not to do so on double jeopardy.
• The General Assembly's power under § 8.01-3 explicitly contemplates modifying court rules; "variance shall be construed so as to give effect to such enactment."
• Subconstitutional state court decisions (Rushing) can be modified by ordinary legislation; only constitutional rulings require constitutional amendment.

Citations

• Va. Code § 19.2-324.1
• Va. Code § 8.01-3
• Va. Const. art. I, § 8; art. IV, §§ 13, 14
• U.S. Const. amend. V
• Rushing v. Commonwealth, 284 Va. 270, 726 S.E.2d 333 (2012)
• Crawford v. Commonwealth, 281 Va. 84, 704 S.E.2d 107 (2011)
• Lockhart v. Nelson, 488 U.S. 33 (1988)
• Burks v. United States, 437 U.S. 1 (1978)
• McDaniel v. Brown, 558 U.S. 120 (2010)
• United States v. Tateo, 377 U.S. 463 (1964)
• Tibbs v. Florida, 457 U.S. 31 (1982)
• Jackson v. Virginia, 443 U.S. 307 (1979)
• Stephens v. Commonwealth, 263 Va. 58, 557 S.E.2d 227 (2002)
• Martin v. Commonwealth, 221 Va. 720, 273 S.E.2d 778 (1981)
• Brown v. Ohio, 432 U.S. 161 (1977)
• DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127, 704 S.E.2d 365 (2011)
• Jaynes v. Commonwealth, 276 Va. 443, 666 S.E.2d 303 (2008)
• Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209 (1931)
• 2013 Va. Acts ch. 675

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-027_Surovell.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 23, 2013

The Honorable Scott A. Surovell
Member, House of Delegates
Post Office Box 289
Mount Vernon, Virginia 22121

Dear Delegate Surovell:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether House Bill No. 2338, now codified as § 19.2-324.1 of the Code of Virginia, violates the Fifth Amendment to the U.S. Constitution or Article I, § 8, of the Constitution of Virginia.

Response

It is my opinion that House Bill No. 2338, as codified in § 19.2-324.1, is constitutional; the enactment does not infringe upon any protection afforded by either the Fifth Amendment to the U.S. Constitution or Article I, § 8, of the Constitution of Virginia. It is further my opinion that the Constitution of Virginia expressly permits the General Assembly to legislate on matters of procedural as well as substantive law;[1] therefore, no amendment to the Constitution of Virginia was necessary for this enactment to take effect on July 1, 2013.

Background

House Bill No. 2338 was duly enacted by the General Assembly during the 2013 Regular Session and subsequently was signed into law by the Governor in March of 2013.[2] The law, now codified as § 19.2-324.1, became effective on July 1, 2013.[3] In your request, you posit that this piece of legislation may improperly place an accused person twice in jeopardy for the same offense. Specifically, you express concern that the legislation could be unconstitutional because you believe the Supreme Court of Virginia case to which it responds, Rushing v. Commonwealth,[4] was based on the state Constitution. You further posit that, assuming those circumstances, an amendment to the Constitution of Virginia was necessary to give force to the enactment.

Applicable Law and Discussion

At the threshold, all legislative acts "are presumed to be constitutional."[5] "Indeed, '[t]here is no stronger presumption known to the law than that which is made by the courts with respect to the constitutionality of an act of Legislature.'"[6] Under this presumption, courts must "resolve any reasonable doubt regarding the constitutionality of a statute in favor of its validity."[7] Moreover, "the Legislature has the power to legislate on any subject unless the Constitution says otherwise...."[8]

Section 19.2-324.1, the new code provision created by the legislation you question, provides for the following:

In appeals to the Court of Appeals or the Supreme Court, when a challenge to a conviction rests on a claim that the evidence was insufficient because the trial court improperly admitted evidence, the reviewing court shall consider all evidence admitted at trial to determine whether there is sufficient evidence to sustain the conviction. If the reviewing court determines that evidence was erroneously admitted and that such error was not harmless, the case shall be remanded for a new trial if the Commonwealth elects to have a new trial.

This provision abrogates Rushing[9] and codifies U.S. Supreme Court jurisprudence addressing the proper procedure for evaluating challenges to the sufficiency of the evidence when evidence is improperly admitted or rejected at trial.[10] You express concern that remanding a case for a new trial under the circumstances presented in § 19.2-324.1 runs afoul of constitutional protections against double jeopardy.[11]

Based on a review of the precedent that follows, I conclude that § 19.2-324.1 does not violate the protections against double jeopardy contained in the federal and state constitutions.

I first offer an explanation of how the U.S. Supreme Court views the Double Jeopardy Clause in cases involving evidentiary issues. Significantly, the Court repeatedly has held that the Double Jeopardy Clause "does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction."[12] In Lockhart v. Nelson, the Court articulated the policy reasoning behind this doctrine:

Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.[13]

In United States v. Tateo, the Court explained how this principle also serves to protect a defendant at the trial court level:

From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest.[14]

An exception exists to the general rule that the government may retry a defendant whose conviction has been reversed for error. This exception, recognized in Burks v. United States, is available "when a defendant's conviction is reversed by an appellate court on the sole ground that the evidence was insufficient to sustain the jury's verdict."[15] In such instances, "the Double Jeopardy Clause bars a retrial on the same charge."[16] Consequently, the government is precluded from retrying the defendant in an attempt "to supply evidence which it failed to muster in the first proceeding."[17] Nonetheless, the U.S. Supreme Court has noted the fundamental distinction, "for double jeopardy purposes," between a reversal based solely on insufficient evidence and a reversal based on "ordinary trial errors" like the improper admission or rejection of evidence:[18]

While the former [recognizes] 'that the government has failed to prove its case' against the defendant, the latter 'implies nothing with respect to the guilt or innocence of the defendant,' but is simply 'a determination that he has been convicted through a judicial process which is defective in some fundamental respect.'[19]

Given this fundamental distinction, "where the evidence offered by the State and admitted by the trial court - whether erroneously or not - would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial."[20] Rather, "[i]t has long been settled... that the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction."[21] In sum, a reversal for trial error, rather than the sufficiency of the evidence, does not operate as an acquittal but recognizes that a breakdown in the judicial process occurred. In such instances, "the accused has a strong interest in obtaining a fair adjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished."[22]

Accordingly, the U.S. Supreme Court has held that, in considering a defendant's challenge to his conviction based on the sufficiency of the evidence, a reviewing court must consider all the evidence examined at trial, whether or not such evidence was admitted erroneously.[23] The reason for this is that the reviewing court stands in no greater position with respect to the quantum of evidence than that of the trial court. When a defendant argues on appeal that his conviction should be reversed due to insufficient evidence, he essentially argues that the trial court should have acquitted him at the close of the evidence.[24] The reviewing court therefore must examine the exact evidence that was considered by the trial court, without regard to whether such evidence was properly or improperly admitted. To do otherwise would place the reviewing court on a different analytical balance than the trial court, thus potentially skewing the reviewing court's determination as to whether the evidence was sufficient at the trial court level.[25]

As a result, the reviewing court must treat any evidence improperly admitted at the trial court level as "ordinary trial error" rather than error affecting the sufficiency of the evidence.[26] If the overall quantum of evidence (both admissible and inadmissible)[27] supports conviction, the reviewing court will not reverse due to insufficiency of the evidence. If a reviewing court concludes that, absent the impermissible evidence, there was insufficient evidence to support a conviction, it should reverse the conviction for "ordinary error," i.e., error lying in the improper admission of evidence rather than the sufficiency thereof.[28] As the U.S. Supreme Court has stated, reversal of a conviction on the grounds of "ordinary error" does not preclude the Government from retrying the defendant.[29] No double jeopardy principles are offended by a retrial after reversal for ordinary trial error, as opposed to trial error based on the grounds of insufficient evidence.[30]

Like the U.S. Supreme Court, the Virginia Supreme Court also has dealt with the issue of retrial after reversal for evidentiary error at the trial court level. In Rushing, the Virginia Supreme Court considered the case of a defendant who challenged his conviction for criminal gang participation on the grounds of insufficient evidence.[31] While acknowledging the precedent for evaluating challenges to the sufficiency of the evidence set by the U.S. Supreme Court in Lockhart, the Virginia Supreme Court nevertheless found that Virginia had adopted a contrary standard of appellate review.[32] Citing Crawford v. Commonwealth,[33] the Court stated that the applicable rule in Virginia is that "on appellate review of the sufficiency of the evidence, 'an appellate court may not consider evidence illegally admitted at trial.'"[34]

Upon finding that some evidence had been erroneously admitted at trial, the Rushing Court held that:

[I]f the record is considered without the erroneously admitted evidence... the Commonwealth proved only one predicate crime committed by a gang member rather than the two required by the statute. Therefore, the Commonwealth failed to prove an essential element of the crime and the Court of Appeals erred in affirming Rushing's conviction for gang participation.[35]

The Court then reversed Rushing's conviction for gang participation and entered final judgment based on insufficient evidence at trial,[36] thus barring a retrial.[37]

The Virginia Supreme Court's holding in Rushing afforded the defendant in that case greater protection against double jeopardy than that delineated by the U.S. Supreme Court in Lockhart.[38] Although a state, as a matter of state law, may extend greater constitutional safeguards to its citizens than those afforded by the federal Constitution,[39] Virginia has not chosen to do so with respect to double jeopardy protections.[40] As a result, the holding of the U.S. Supreme Court in Lockhart is applicable to constitutional double jeopardy jurisprudence in Virginia. Consequently, the Virginia Supreme Court's holding in Rushing represents a deviation from applicable federal precedent.[41]

As you note, the Virginia Supreme Court, in Rushing, referenced "Constitutional protections" in its opinion, but did not specify them. Rather, the Court disclaimed that it was reaching the constitutional issue, noting that "[t]he only issues before us in this appeal involve questions of the interpretation of Virginia statutes, Virginia appellate procedure, and Virginia's rules of evidence."[43] The Court then reiterated that it was not reaching the constitutional issue.[44]

By its express terms, Rushing's rule of decision did not implicate constitutional grounds. Accordingly, it was and remains within the purview of the General Assembly to change the underlying rules of evidence/appellate procedure in a way that would lead to a different result.[45] As you note, the General Assembly did exactly that when HB 2338 was adopted, with the House of Delegates doing so unanimously.[46]

In closing, I make the following observations. It is well-established that the remedy for a violation of a criminal defendant's Sixth Amendment right to confrontation is a new trial.[47] The remedy for a violation of a criminal defendant's Sixth Amendment right to effective assistance of counsel is a new trial.[48] The remedy for a violation of a criminal defendant's Fifth Amendment right against self-incrimination is a new trial without the offending evidence.[49] None of these situations offends the Double Jeopardy Clause.[50] A violation of a mere state law rule of evidence, which is what was at issue in Rushing,[51] entitles a criminal defendant to no greater remedy than he receives for a violation of a constitutional right.

Based on the foregoing, I conclude that § 19.2-324.1 requires nothing more than what the U.S. Supreme Court has said is required in precisely the circumstance Rushing presented. Therefore, the new statute fully comports with the Fifth Amendment of the U.S. Constitution and Article I, § 8, of the Constitution of Virginia. Furthermore, because the Rushing decision was not dictated by the constitutional principles you reference, the subsequent enactment of § 19.2-324.1 was and remains within the authority of the General Assembly and no constitutional amendment was necessary.

Conclusion

Accordingly, it is my opinion that House Bill No. 2338, as codified in § 19.2-324.1, is constitutional; the legislation does not infringe upon the protections against double jeopardy contained in the Fifth Amendment to the U.S. Constitution or Article I, § 8, of the Constitution of Virginia. It is further my opinion that no amendment to the Constitution of Virginia was necessary for this enactment to take effect.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] Va. Const. art. IV, § 14.

[2] See 2013 Va. Acts ch. 675. See also Va. Const. art. IV, § 11 (setting forth the procedure by which a bill may become duly-enacted law); Virginia General Assembly Legislative Information System, HB 2338, 2013 Reg. Sess. (Va. 2013), Criminal conviction; appeals to Court of Appeals, etc., based on erroneously admitted evidence (setting forth the complete legislative history of House Bill No. 2338).

[3] Va. Const. art. IV, § 13.

[4] 284 Va. 270, 726 S.E.2d 333 (2012).

[5] In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272 (2003); see also Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 336, 689 S.E.2d 679, 684 (2010) ("[D]uly enacted laws are presumed to be constitutional."); Yamaha Motor Corp., U.S.A. v. Quillian, 264 Va. 656, 665, 571 S.E.2d 122, 126 (2002) ("[A]ll acts of the General Assembly are presumed to be constitutional.").

[6] FFW Enters. v. Fairfax Cnty., 280 Va. 583, 590, 701 S.E.2d 795, 799 (2010) (alteration in original) (citation omitted); see also Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959).

[7] In re Phillips, 265 Va. at 85-86, 574 S.E.2d at 272.

[8] FFW Enters., 280 Va. at 592, 701 S.E.2d at 801 (citation omitted).

[9] 284 Va. 270, 726 S.E.2d 333.

[10] See McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per curiam); see also Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988).

[11] The federal Double Jeopardy Clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This provides a defendant with protection against a second prosecution for the same offense after acquittal or conviction, as well as protection against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977); Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981). The Constitution of Virginia also guarantees that an individual subject to criminal prosecution "shall not... be put twice in jeopardy for the same offense." Va. Const. art. I, § 8. The protections of the Virginia Constitution with respect to double jeopardy are the same as those of the federal Constitution. See Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 230 (2002); Martin v. Commonwealth, 221 Va. 720, 722, 273 S.E.2d 778, 780 (1981).

[12] Burks v. United States, 437 U.S. 1, 14 (1978) (quoting United States v. Tateo, 377 U.S. 463, 465 (1964)).

[13] Lockhart, 488 U.S. at 38 (1988) (quoting Tateo, 377 U.S. at 466); see also Garrett v. United States, 471 U.S. 773, 796 (1985) ("[T]he finality guaranteed by the Double Jeopardy Clause is not absolute, but instead must accommodate the societal interest in prosecuting and convicting those who violate the law.") (O'Connor, J., concurring).

[14] Tateo, 377 U.S. at 466.

[15] Lockhart, 488 U.S. at 39 (emphasis added) (citing Burks, 437 U.S. at 18).

[16] Id.

[17] Burks, 437 U.S. at 5, 11.

[18] Lockhart, 488 U.S. at 40 (internal quotation marks omitted). See United States v. Dionisio, 503 F.3d 78, 83 (2d Cir. 2007) ("[I]n identifying whether jeopardy attache[s], it is necessary to distinguish... between determinations that relate to a defendant's culpability and those that are merely procedural and do not bear on the defendant's blameworthiness....") (internal quotation marks omitted); Ex parte Grantham, 613 So.2d 1260 (Ala. 1993) (discussing and explaining the "Burks/Lockhart rule").

[19] Lockhart, 488 U.S. at 40 (alteration in original) (emphasis omitted) (quoting Burks, 437 U.S. at 15).

[20] Id. at 34.

[21] Id. at 38. See also Tibbs v. Florida, 457 U.S. 31, 40 (1982) (discussing the "narrow exception" Burks created to the general rule that retrial upon reversal of a conviction is permissible).

[22] Burks, 437 U.S. at 15.

[23] McDaniel, 558 U.S. at 131; Lockhart, 488 U.S. at 41. See also Langevin v. State, 258 P.3d 866, 874 (Alaska Ct. App. 2011); People v. Story, 204 P.3d 306, 316 (Cal. 2009); People v. Williams, 183 P.3d 577, 581 (Colo. App. 2007); Carr v. State, 934 N.E.2d 1096, 1109 (Ind. 2010); State v. Wright, 690 So. 2d 850, 855 (La. Ct. App. 1997); Emory v. State, 647 A.2d 1243, 1266 (Md. Ct. Spec. App. 1994); Commonwealth v. Hanson, 945 N.E.2d 409, 412 (Mass. App. Ct. 2011); State v. Cox, 779 N.W.2d 844, 853 (Minn. 2010); State v. McCulloch, 742 N.W.2d 727, 733 (Neb. 2007); Stephans v. State, 262 P.3d 727, 734 (Nev. 2011); State v. Horak, 986 A.2d 596, 601 (N.H. 2010); State v. Brewer, 903 N.E.2d 284, 291 (Ohio 2009); State v. Frazier, 622 N.W.2d 246, 261 (S.D. 2001); State v. Longstreet, 619 S.W.2d 97 (Tenn. 1981) (each considering all evidence admitted at trial, including erroneously admitted evidence, when assessing sufficiency for double-jeopardy purposes).

[24] McDaniel, 558 U.S. at 131; Lockhart, 488 U.S. at 39.

[25] See Lockhart, 488 U.S. at 39.

[26] Id. at 40.

[27] The standard of examining all evidence upon review for sufficiency of the evidence is also set forth in Jackson v. Virginia: "Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." 443 U.S. 307, 318-19 (1979) (footnote omitted) (citation omitted). The Supreme Court of Virginia has cited the Jackson standard many times as controlling sufficiency of the evidence review on appeal in Virginia: see, e.g., Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011); Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010); Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009); Jones v. Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009); McMillan v. Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009); Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008); Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). See also Hubbard v. Commonwealth, 276 Va. 292, 295, 661 S.E.2d 464, 466 (2008); Washington v. Commonwealth, 273 Va. 619, 629, 643 S.E.2d 485, 490 (2007); Powell v. Commonwealth, 268 Va. 233, 237, 602 S.E.2d 119, 121 (2004) (Koontz, J., dissenting); Smith v. Commonwealth, 220 Va. 696, 703, 261 S.E.2d 550, 555 (1980) (Poff, J., dissenting).

[28] See Lockhart, 488 U.S. at 40-42.

[29] Burks, 437 U.S. at 14.

[30] Id. at 14.

[31] See Rushing v. Commonwealth, 58 Va. App. 594, 608, 712 S.E.2d 41, 48 (2011).

[32] Rushing, 284 Va. at 278, 726 S.E.2d at 339.

[33] 281 Va. 84, 704 S.E.2d 107 (2011).

[34] Rushing, 284 Va. at 278, 726 S.E.2d at 339 (emphasis added) (quoting Crawford, 281 Va. at 112, 704 S.E.2d at 123-24).

[35] Rushing, 284 Va. at 278, 726 S.E.2d at 339 (emphasis added).

[36] Id. at 279, 726 S.E.2d at 339.

[37] See Burks, 437 U.S. at 16-17.

[38] The underlying circumstances of Rushing are quite similar to those in Lockhart. In both cases, a conviction order used to prove a predicate offense ultimately was held inadmissible. Lockhart, 488 U.S. at 37; Rushing, 284 Va. at 277, 726 S.E.2d at 337-38.

[39] Cf. Virginia v. Moore, 553 U.S. 164, 174 (2008) ("A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.").

[40] As stated in Note 11, supra, the double jeopardy protections afforded by the Constitution of Virginia are coextensive with Fifth Amendment protections against double jeopardy. See Stephens, 263 Va. at 62, 557 S.E.2d at 230 ("Virginia's constitutional guarantee against double jeopardy affords a defendant the same guarantees as the federal Double Jeopardy Clause."); see also Martin, 221 Va. at 722, 273 S.E.2d at 780. Cf. DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127, 134, 704 S.E.2d 365, 369 (2011) (Second Amendment) ("This Court has stated that provisions of the Constitution of Virginia that are substantively similar to those in the United States Constitution will be afforded the same meaning.").

[41] I note that "a state supreme court has no discretion to disregard" applicable constitutional holdings of the U.S. Supreme Court. See Jaynes v. Commonwealth, 276 Va. 443, 458, 666 S.E.2d 303, 311 (2008); see also Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 220-21 (1931) (holding that state courts may not lawfully adopt their own rules and procedures contrary to decisions of the U.S. Supreme Court on questions of federal law; rather, a determination by that Court on a matter of federal law "is binding upon the state courts and must be followed, any state law, decision, or rule to the contrary notwithstanding."). Only the U.S. Supreme Court can overrule one of its precedents. Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam).

[42] Rushing, 284 Va. at 278, 726 S.E.2d at 339. Crawford, the case cited in Rushing, also fails to specify the "Constitutional protections" at issue. See Crawford, 281 Va. at 112, 704 S.E.2d at 124.

[43] Rushing, 284 Va. at 278, n.4, 726 S.E.2d at 339, n.4.

[44] Id. at 278, n.5, 726 S.E.2d at 339 n.5 ("Here, as in Crawford, we are concerned with the rules of appellate review in Virginia. The Supreme Court of the United States, in Lockhart, in a federal habeas corpus appeal, considered whether the Double Jeopardy Clause barred a resentencing proceeding after evidence used to support an enhanced penalty was found to have been improperly admitted. If the Commonwealth should seek to retry Rushing, a double jeopardy question may arise, but that question is not before us in this appeal.").

[45] The Virginia Supreme Court has the power to adopt evidentiary and other rules. See Va. Code Ann. § 8.01-3 (Supp. 2013). Nevertheless, those rules are subject to revision by the General Assembly. Section 8.01-3(D) ("The General Assembly may, from time to time, by the enactment of a general law, modify or annul any rules adopted or amended pursuant to this section. In the case of any variance between a rule and an enactment of the General Assembly such variance shall be construed so as to give effect to such enactment.") (emphasis added).

[46] See Virginia General Assembly Legislative Information System, HB 2338 vote HV0608.

[47] See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327-29 (2009); Cypress v. Commonwealth, 280 Va. 305, 317-18, 320, 699 S.E.2d 206, 213-14 (2010).

[48] See, e.g., Jackson v. Warden, 270 Va. 269, 280, 619 S.E.2d 92, 97-98 (2005).

[49] See, e.g., Ferguson v. Commonwealth, 52 Va. App. 324, 348, 663 S.E.2d 505, 516 (2008) (en banc), aff'd, 278 Va. 118, 677 S.E.2d 45 (2009).

[50] The reason for this procedure is manifest: the price for adopting a contrary rule is too high to exact upon society and may ultimately infringe the rights of those subject to criminal prosecution. Tateo, 377 U.S. at 466.

[51] 284 Va. at 278 n.4, 726 S.E.2d at 339 n.4.