Defendant was charged in municipal court with an open container and was convicted after trial. He was also charged in circuit court with crack possession, and the state argued offensive collateral estoppel from losing the prior search claim. The court discusses the history of collateral estoppel and how it was applied without explanation in a criminal case first in 1942. “[E]ven if Hewins pled guilty to the open container violation, his plea would have constituted a waiver of any challenge he may have had to that offense but could not be extended to constitute a waiver of a challenge to the charge of possession of crack cocaine.” There are constitutional problems inherent in offensive collateral estoppel against a defendant. State v. Hewins, 2014 S.C. LEXIS 263 (July 16, 2014):
When the prosecution invokes collateral estoppel against the defendant, its use is “sometimes restricted by concerns such as fairness to the defendant.” Anne Bowen Poulin, Prosecution Use of Estoppel and Related Doctrines in Criminal Cases: Promoting Consistency, Tolerating Inconsistency, 64 Rutgers L. Rev. 409, 410 (Winter 2012). Specifically, “the State’s use of offensive collateral estoppel against a defendant has raised the issue of whether it violates the defendant’s Sixth Amendment right to a jury trial.” Dunavant, supra at 642. “The constitutional argument is that if a court allows the State to invoke offensive collateral estoppel against a criminal defendant, effectively banning the defendant from litigating every element of his offense in front of the jury in a subsequent action, the subsequent jury would not be able to consider all of the facts.” Id. “Consequently, the use of offensive collateral estoppel would prevent the jury from making every finding necessary to the judgment in the subsequent suit and thus would violate the defendant’s constitutional right to a jury trial.” Id.
Additionally, it has been asserted that “the application of offensive issue preclusion by the government violates the defendant’s Fifth Amendment right to due process.” Michelle S. Simon, Offensive Issue Preclusion in the Criminal Context: Two Steps Forward, One Step Back, 34 U. Mem. L. Rev. 753, 779 (Summer 2004). “Under the Due Process Clause, a criminal defendant has the right to a determination by a jury of whether the prosecution has proved every element of the crime charged beyond a reasonable doubt.” Id. “By finding that an element of the crime has been conclusively proven, the argument is that the prosecution is relieved of its burden of proof.” Id. “Not only is the prosecution relieved of its burden of proof, but the burden shifts to the defendant to overcome the prejudice of the jury created by the knowledge of the previous determination.” Id.
Given the significant constitutional issues raised by the use of offensive collateral estoppel, it is questionable that the policy reasons used to support issue preclusion in civil cases justify the use of the doctrine in the criminal context. Id. at 780. Specifically, “[t]he notion of judicial efficiency and finality has been invoked in civil trials to support the use of issue preclusion since the prompt resolution of claims and finality are desirable goals in civil litigation.” Id. However, it would appear that “the efficiencies of issue preclusion pale in comparison to the importance of upholding a criminal defendant’s right to vigorously defend himself and protect his liberty.” Id.
In view of these constitutional and policy concerns, the majority of federal courts have prohibited the prosecution from invoking collateral estoppel against a defendant. See United States v. Pelullo, 14 F.3d 881, 890 (3d Cir. 1994) (denying the use of offensive collateral estoppel in a criminal context because it would violate a defendant’s right to a jury trial; noting, “Instances of invoking collateral estoppel against the defendant have been rare, though not unheard of”); United States v. Smith-Baltiher, 424 F.3d 913 (9th Cir. 2005) (rejecting the use of offensive collateral estoppel in criminal context); United States v. Gallardo-Mendez, 150 F.3d 1240 (10th Cir. 1998) (prohibiting prosecution’s use of a guilty plea to collaterally estop a defendant from relitigating an issue in a subsequent criminal proceeding because it would be contrary to the Due Process Clause); United States v. Harnage, 976 F.2d 633 (11th Cir. 1992) (precluding the use of offensive collateral estoppel because it would defeat the goal of judicial efficiency).
The majority of state courts that have considered this issue have also precluded the prosecution from invoking collateral estoppel against a defendant. See Gutierrez v. People, 29 Cal. Rptr. 2d 376 (Cal. Ct. App. 1994) (holding that defendant’s right to a fair trial prevented the State from asserting collateral estoppel to bar defendant from litigating issues of identity and intent based on resolution of those issues in prior trial resulting in final judgment of conviction for attempted murder of the same victim); State v. Stiefel, 256 So. 2d 581, 585 (Fla. Dist. Ct. App. 1972) (finding collateral estoppel was inapplicable in subsequent prosecution originating out of the same events that led to a conviction for driving while intoxicated because due process principles “assure an accused a jury trial on all issues relating to each element of a given criminal charge”); State v. Allen, 31 A.3d 476 (Md. 2011) (holding prosecution’s use of offensive collateral estoppel to establish an essential element of a charged offense in a criminal case violates a defendant’s right to trial by an impartial jury and the presumption of innocence); People v. Goss, 521 N.W.2d 312 (Mich. 1994) (holding that neither collateral estoppel nor res judicata could be applied to conclusively establish underlying felony, as a matter of law, in retrial of felony-murder conviction); State v. Johnson, 594 A.2d 1288 (N.H. 1991) (concluding that doctrine of collateral estoppel could not be applied offensively in perjury prosecution so as to preclude litigation of primary substantive issue involving a specific finding of fact made by a jury in a prior criminal trial against the defendant); State v. Igenito, 432 A.2d 912, 918-19 (N.J. 1981) (concluding that “collateral estoppel, applied affirmatively against a defendant in a criminal prosecution, violates the right to trial by jury in that not only does it seriously hobble the jury in its quest for truth by removing significant facts from the deliberative process, but it constitutes a strong, perhaps irresistible, gravitational pull towards a guilty verdict”); State v. Scarbrough, 181 S.W.3d 650 (Tenn. 2005) (holding the prosecution could not invoke the doctrine of offensive collateral estoppel to establish an essential element in a criminal case).
