Offensive Issue Preclusion in the Criminal Context: Two Steps Foward, One Step Back

I. INTRODUCTIONThe last thirty-five years have brought a myriad of changes to the law of res judicata. Res judicata literally means "a thing decided."1 The doctrine rests on the premise that once a controversy has been decided, that determination should be conclusive in a subsequent action.2 While claim preclusion3 attempts to avoid duplication of whole claims or cases, issue preclusion or collateral estoppel4 works to avoid duplication of particular issues. In effect, the doctrine of issue preclusion scans the first litigation and takes note of each issue decided in it. Then, if a second lawsuit based on a different cause of action attempts to reintroduce the same issue, issue preclusion intervenes to preclude relitigation of that issue and bind parties to the result originally achieved.The doctrine of issue preclusion has undergone significant developments in recent years.5 In the context of federal civil litigation, the Supreme Court abandoned the requirement of mutuality6 in cases involving defensive issue preclusion.7 As a result, only the party against whom issue preclusion is sought to be used must have been a party in the first action.8 Eight years later, in Parklane Hosiery Co. v. Shore, Inc.,9 the Supreme Court held that in the federal civil context, trial courts should have broad discretion in allowing offensive issue preclusion.10 Therefore, in federal civil cases, issue preclusion can be used in the second lawsuit by either the defendant or the plaintiff and can bind a party who was not a party in the first action.11Although first developed in civil litigation, collateral estoppel has also been a rule of federal criminal law since 1916.12 More recently, in 1970, the Supreme Court held that a criminal defendant's right to use issue preclusion offensively against the government is rooted in the Fifth Amendment guarantee against double jeopardy.13 Therefore, a defendant has a constitutional right to assert issue preclusion against the government to prevent the government from relitigating an issue determined in a previous action in favor of the defendant.14The Supreme Court has not addressed whether the rationale enunciated in Parklane can be applied in the criminal context, thus allowing the government to invoke offensive issue preclusion to prevent the defendant from relitigating an issue that was decided in a previous criminal trial in favor of the government. The lower federal courts are divided on whether offensive collateral estoppel is appropriate in the criminal context.15 Recent decisions have continued to extend the law of issue preclusion by allowing the use of offensive issue preclusion in criminal trials that involve issues of citizenship status, while refusing to expand it to other contexts.16In a country that has been recently scarred by the events of September 11, 2001, the current position of the courts is troubling. According to the United States Census Bureau, between eight million and twelve million illegal aliens are believed to be living in the United States, with anywhere from one million to three million more expected this year.17 At the same time, to address the security concerns, the federal government has increased its emphasis on interior enforcement of illegal aliens. The American public is experiencing the unleashing of xenophobia and is vulnerable to demagoguery about the status of aliens in our country.This article addresses whether the expansion of the doctrine of issue preclusion in the federal criminal area should mirror the expansion of the doctrine in the federal civil area.18 The article examines the general requirements of issue preclusion and the evolution of issue preclusion in both the civil and criminal context.19 Next, this article examines the current status of offensive and defensive issue preclusion when the first suit is civil and the second suit is criminal,20 the first suit is criminal and the second suit is civil,21 and where both the first and second action is criminal. …