In my experience, the mere mention of the terms “res judicata” and “collateral estoppel” in the classroom setting operates like a blast of intellectual air conditioning, causing mental processes to slow and eyes to glaze, if not to twitch. Notwithstanding this aversion to the concepts, at bottom they are quite simple. Both concepts are rules of preclusion; they preclude the relitigation of matters previously determined. Specifically, res judicata deals with claim preclusion while collateral estoppel deals with issue preclusion. Although the rules typically come up in civil cases, they can arise in the criminal context as well. And while they also typically are raised as defenses, they can be used offensively as well. Consider this example: Suppose a defendant is charged with felony murder and first-degree burglary. Suppose further that the jury finds him guilty of first-degree burglary but can’t reach a verdict on the felony murder charge. The trial court declares a mistrial on the felony murder charge and enters a PJC on the burglary charge, pending a retrial on felony murder. At the defendant’s retrial on felony murder, the trial judge instructs the jury that "because it has previously been determined beyond a reasonable doubt in a prior criminal proceeding that [the defendant] committed first degree burglary on [the date in question] . . . you should consider that this element [of felony murder (that defendant committed the felony of first degree burglary)] has been proven to you beyond a reasonable doubt." And now a pop quiz: Is the [...]
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