The doctrines of res judicata and collateral estoppel are applicable in criminal cases.27 Under these doctrines, once an issue of fact essential to the judgment has been determined to be a valid and final judgment, that issue cannot be relitigated in a future case.28 The constitutional provision against double jeopardy embodies the corollary doctrines of res judicata and collateral estoppel, but these doctrines may bar retrial in cases where the doctrine of double jeopardy would not.29
The doctrine of collateral estoppel states that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. To trigger collateral estoppel, each of the following four factors must be present: (1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.29.1
The doctrine of res judicata and collateral estoppel, as applied to criminal prosecutions, are embodied in the provisions of the Delaware Criminal Code which define circumstances where a prior prosecution will bar a retrial where the prior prosecution is for a different offense based on different facts.30 If the prior prosecution resulted in an acquittal which has not been subsequently set aside or in a plea of guilty or nolo contendere accepted by the court or in a jury verdict of guilty which has not been set aside and which is capable of supporting a judgment or in a judgment of conviction which has not been reversed or vacated, a subsequent prosecution is barred if it is for any offense of which the defendant could have been convicted in the first prosecution31 or for an offense involving the same conduct.32 However, a subsequent prosecution for the same conduct will not be barred if the offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense or offenses and the law defining each of the offenses is intended to prevent a substantially different harm or evil or the second offense was not consummated when the former trial began.33
Prosecution is also barred where the former prosecution was terminated, after the information was filed or the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense for which the defendant is subsequently prosecuted.34 Prosecution is also barred where the former prosecution was terminated after the first witness was sworn but before verdict, for reasons not amounting to an acquittal, and a subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been so terminated.35 Such termination will not bar a subsequent prosecution if the defendant consents to the termination or waives, by motion to dismiss or otherwise, his or her right to object to the termination or if the trial court declares a mistrial in accordance with the law.36
In no event is a subsequent prosecution barred if the former prosecution was before a court which lacked jurisdiction over the defendant or the offense or the former prosecution was procured by the defendant with the knowledge of the appropriate prosecuting officer and with the purpose of avoiding sentence or if a conviction in a former prosecution was held invalid on appeal or in a subsequent collateral proceeding such as habeas corpus or coram nobis.37 When a court has incidentally determined a matter over which it would have had no jurisdiction to determine in an action brought directly to determine it, the judgment is not conclusive in a second action brought to determine the matter directly.38
The doctrine of collateral estoppel is not applicable at the grand jury stage of proceedings. In addition, discharge of an accused person at a preliminary examination for lack of probable cause constitutes no bar to a subsequent preliminary examination before another magistrate.38.1
The doctrines of res judicata and collateral estoppel should be applied realistically and practically to the facts of a given case.39 A court, when faced with a claim of res judicata or collateral estoppel, must examine the record of the prior proceeding, taking into account the pleadings, evidence, jury instructions and other related matters and decide whether a rational jury could have based its verdict upon an issue other than the one which the defendant seeks to foreclose from consideration in the subsequent case. If the answer is no, then the doctrines apply and the subsequent prosecution is barred.40 The burden is on the defendant to prove that the issue to be re-litigated was actually decided in the prior proceeding.40.1
The fact that different prosecuting entities are involved does not preclude the application of the doctrines.41 The government generally will not be collaterally stopped from prosecuting a charge which was previously the subject of civil litigation to which the government was not a party.41.1
27. Marine v. State, 624 A.2d 1181, 1190 (Del. 1993) (collateral estoppel); State v. Heitter, 203 A.2d 69, 71 (Del. 1964) (res judicata).
28. Marine v. State, 624 A.2d 1181, 1190 (Del. 1993); Taylor v. State, 402 A.2d 373, 375 (Del. 1979); State v. Heitter, 203 A.2d 69, 72 (Del. 1964); State v. Machin, 642 A.2d 1235 (Del. Super. 1993).
29. Marine v. State, 624 A.2d 1181, 1190 (Del. 1993).
29.1. Norman v. State, 976 A.2d 843, 868-69 (Del.), cert. denied, 130 S.Ct. 561 (2009); Brown v. State, 721 A.2d 1263, 1265 (Del. 1988).
30. 11 Del. C. §§ 207, 208.
31. 11 Del. C. § 208(1)(a).
32. 11 Del. C. §§ 208(1)(b), 209(l).
33. 11 Del. C. §§ 208(1)(b)(2), 209(1)(b).
34. 11 Del. C. §§ 208(2), 209(2).
35. 11 Del. C. §§ 208(3), 209(3).
36. 11 Del. C. §§ 207(4), 208(4).
37. 11 Del. C. § 210.
38. Taylor v. State, 402 A.2d 373, 376 (Del. 1979).
38.1. State v. McLaughlin, Cr. A. Nos. IN97-08-1040, CR.A. IN97-08-1041, CR.A. IN97-08-1042, ID 9705010616, Goldstein, J. (Del. Super. Feb 10, 1998).
39. State v. Machin, 642 A.2d 1235 (Del. Super. 1993), app. denied mem., 655 A.2d 1225 (Del. 1995).
40. Peterson v. State, 81 A.3d 1244, 1247-48 (Del. 2013); Taylor v. State, 402 A.2d 373, 375 (Del. 1979); State v. Sheeran, 441 A.2d 235, 243-44 (Del. Super. 1981), cert. denied, 497 A.2d 791 (Del. 1985); State v. Machin, 642 A.2d 1235 (Del. Super. 1993), app. denied mem., 655 A.2d 1225 (Del. 1995).
40.1. State v. Hardin, Cr. A. Nos. IN 93-07-0766-0777, slip op. at 12, Cooch, J. (Del. Super. July 6, 1994).
41. State v. Machin, 642 A.2d 1235 (Del. Super. 1993), app. denied mem., 655 A.2d 1225 (Del. 1995).
41.1. State v. Manista, 651 A.2d 781, 785-86 (Del. Fam. 1994).
© 2014 David L. Finger