Prosecution Use of Estoppel and Related Doctrines in Criminal Cases: Promoting Consistency, Tolerating Inconsistency
Posted: 19 Nov 2011
Date Written: November 1, 2011
Abstract
Four consistency promoting doctrines play a role in criminal cases: stare decisis, res judicata, collateral estoppel, and law of the case. While these doctrines engender consistency, increase efficiency and conserve scarce resources, allowing the prosecution to employ them offensively against a criminal defendant may compromise the defendant’s rights and the interest in justice. As a result, offensive use should be permitted with caution and only after careful consideration.
Although some matters, such as rulings on motions to suppress, are often appropriate for offensive use of these doctrines, courts should nevertheless assess concerns of fairness before applying the doctrines against the defendant. Other matters, such as evidentiary rulings, are almost never appropriate subjects for offensive use of these doctrines.
Most importantly, courts should never apply consistency promoting doctrines to bar the defendant from litigating an element of the offense, even if that element was arguably resolved by an earlier conviction. Courts should also decline to apply these consistency promoting doctrines against third parties to foreclose them from litigating an issue resolved in a proceeding in which they did not participate. Currently, state and federal courts vary in their application of these doctrines: some courts apply them when they should not, and others fail to apply them when they should. By focusing on and weighing the government’s and the defendant’s interests, courts will more accurately define the appropriate offensive use of these doctrines.
Keywords: estoppel, law of the case, res judicata, due process, issue preclusion
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