In Yeager v. United States, the U.S. Supreme Court expounded upon the collateral estoppel component of the Double Jeopardy Clause recognized as inherent to the Fifth Amendment in Ashe v. Swenson. In particular, the Court resolved a circuit split by holding that hung counts should not be considered when determining the preclusive effect of acquittals returned under the same indictment. The Court in Yeager also arrived at the related conclusion that the Double Jeopardy Clause as interpreted by Ashe has the potential to bar retrial of hung counts. Although the Court in Yeager thus reinvented the Double Jeopardy Clause, its analysis did not rise to such a momentous occasion, as it relied not only on circular logic but also serious misreadings of precedent.
Jessica Greenwood, Double Jeopardy – Supreme Court Denies Relevance of Hung Counts to Collateral Estoppel, Expands Double Jeopardy Clause to Apply within a Single Proceeding, 63 SMU L. Rev. 243 (2010)