In Kuhlmann v. Wilson, the U.S. Supreme Court ruled in 1985 that a retrial does not violate the Fifth Amendment's prohibition against double jeopardy if the defendant successfully appeals their conviction on grounds unrelated to factual guilt or innocence and then seeks dismissal of charges at retrial. The case involved respondent Ernesto A. Wilson who was convicted for murder but had his conviction overturned due to improper jury instructions regarding intent to kill under New York law. Upon retrial, he sought dismissal of charges claiming it would constitute double jeopardy which was denied by trial court and affirmed by appellate courts leading up to Supreme Court review where they upheld lower courts' decisions stating that since Wilson’s first appeal did not involve factual innocence but rather legal error, retrying him didn’t amount to double jeopardy.

In the dissenting opinion for Kuhlmann v. Wilson, Justice Brennan argued that the majority's decision was a departure from established precedent regarding Sixth Amendment rights and habeas corpus petitions. He contended that the ruling allowed prosecutors to use illegally obtained evidence in retrials, which he believed undermined defendants' constitutional right to counsel. Furthermore, he disagreed with the majority's interpretation of "deliberately elicited" statements; instead of requiring an intent on behalf of law enforcement officers to provoke incriminating responses (which is difficult to prove), Brennan suggested it should be enough if they knowingly created a situation likely to induce such responses. Lastly, he criticized their new rule limiting federal courts' ability to grant habeas relief unless there was no possibility that admission of unlawfully obtained evidence contributed towards conviction or sentence as being too restrictive and contrary to principles underlying habeas corpus jurisprudence.