104.9Double Jeopardy

Collateral Estoppel

Collateral estoppel “means simply 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.” Ashe v. Swenson, 397 U.S. 436, 443 (1970); accord State v. Adams, 347 N.C. 48, 61 (1997); State v. Brooks, 337 N.C. 132, 147 (1994).

As Bar to Prosecution

The doctrine of collateral estoppel (i.e., issue preclusion) is embodied in the Fifth Amendment guarantee against double jeopardy. Schiro v. Farley, 510 U.S. 222, 232 (1994); State v. McKenzie, 292 N.C. 170, 174 (1977); State v. Davis, 106 N.C. App. 596, 600 (1992). Hence, an acquittal bars not only a later trial for the same offense, but also a later trial for a different offense, if the later trial requires relitigation of factual issues already resolved in the defendant’s favor in the prior trial. Brown v. Ohio, 432 U.S. 161, 166 n.6 (1977). “Subsequent prosecution is barred,” however, “only if the jury could not rationally have based its verdict on an issue other than the one the defendant seeks to foreclose.” State v. Edwards, 310 N.C. 142, 145 (1984); accord State v. Jones, 256 N.C. App. 266, 274 (2017).

It is often difficult to determine on a general verdict whether the issue in question was necessarily decided in the defendant’s favor. State v. McKenzie, 292 N.C. 170, 175 (1977). The determination requires an examination of the entire record of the prior proceeding, including the pleadings, evidence, charge, and other relevant matter. Schiro v. Farley, 510 U.S. 222, 236 (1994); State v. McKenzie, 292 N.C. 170, 174-75 (1977); State v. Tew, 149 N.C. App. 456, 460 (2002). The determinative factor is not the introduction of the same evidence, but rather whether it is absolutely necessary to a conviction in the second proceeding that the second jury find against the defendant on an issue upon which the first jury found in his favor. State v. Edwards, 310 N.C. 142, 145 (1984); State v. Alston, 323 N.C. 614, 617 (1988). Defendant has the burden of establishing that the issue s/he seeks to foreclose was actually decided in the prior proceeding. State v. Carter, 357 N.C. 345, 355 (2003); State v. Spargo, 187 N.C. App. 115, 119 (2007).

Identity of Parties and Issues

Collateral estoppel requires both (1) an identity of parties and (2) an identity of issues. State v. O'Rourke, 114 N.C. App. 435, 439 (1994). With regard to parties, either there must be an identity of parties or the party against whom the defense is asserted must have been in privity with a party in the prior proceedings. State v. Brooks, 337 N.C. 132, 147 (1994). In general, privity involves a person so identified in interest with another that s/he represents the same legal right, and courts will look beyond the nominal party to the real party or parties in interest. State v. Summers, 351 N.C. 620, 623 (2000).

With regard to issues, the North Carolina Supreme Court has recognized a four-factor test:

(1) the issues must be the same as those involved in the prior action,
(2) the issues must have been raised and actually litigated in the prior action,
(3) the issues must have been material and relevant to the disposition of the prior action, and
(4) the determination of the issues in the prior action must have been necessary and essential to the resulting judgment.

State v. Summers, 351 N.C. 620, 623 (2000); State v. Spargo, 187 N.C. App. 115, 120 (2007).

When the issues are not identical, subsequent prosecution is not barred. Hence, retrial was permitted in the following circumstances:

• Prior acquittal for possession of a firearm by a felon did not preclude later trial on armed robbery, State v. Alston, 323 N.C. 614, 616 (1988).

• Prior conviction for manslaughter did not preclude later trial on burglary, State v. Warren, 313 N.C. 254, 264 (1985).

• Prior acquittal of false pretenses did not preclude later trial for false pretenses occurring at a different time, State v. Spargo, 187 N.C. App. 115, 122 (2007).

• Prior acquittal for assault on a government official did not preclude later trial for resist, delay, or obstruct, State v. Newman, 186 N.C. App. 382, 389 (2007).

• Prior acquittal for attempted murder did not preclude later trial on assault with intent to kill. State v. Tew, 149 N.C. App. 456, 461 (2002).

• Prior acquittal of armed robbery did not preclude later trial on accessory after the fact, State v. Cox, 37 N.C. App. 356, 360 (1978).

Codification

By statute, a defendant upon motion is entitled to a dismissal of charges if the trial court determines that “[a]n issue of fact or law essential to a successful prosecution has been previously adjudicated in favor of the defendant in a prior action between the parties.” G.S. 15A-954(a)(7). This is a codification of the common law principle of collateral estoppel as applied in criminal cases. State v. Spargo, 187 N.C. App. 115, 119 (2007).

Limitations

“[T]he doctrine of collateral estoppel applies only to an issue of ultimate fact determined by a final judgment.” State v. Macon, 227 N.C. App. 152, 157 (2013). Hence, after a mistrial, the judge is not bound by prior evidentiary rulings. State v. Knight, 245 N.C. App. 532, 539 (2016), aff'd as modified, 369 N.C. 640 (2017); State v. Macon, 227 N.C. App. 152, 158-59 (2013); State v. Harris, 198 N.C. App. 371, 377 (2009). Absent a mistrial, at least one case has found no error in the trial court’s denying a defendant’s second motion to suppress based on collateral estoppel. State v. Williams, 252 N.C. App. 231, 236 (2017).

Failure to return a verdict does not have collateral estoppel effect, unless the record establishes that the issue was actually and necessarily decided in the defendant’s favor. Schiro v. Farley, 510 U.S. 222, 236 (1994); State v. Allen, 360 N.C. 297, 313 (2006); State v. Herndon, 177 N.C. App. 353, 364 (2006). Further, collateral estoppel does not apply when the defendant, rather than the prosecution, is responsible for related charges not being tried together in a single trial. Currier v. Virginia, 585 U.S. 493, 501 (2018); Ohio v. Johnson, 467 U.S. 493, 500 n.9 (1984).

As Exclusionary Rule

When collateral estoppel does not bar retrial, it also does not require an exclusion of evidence. Dowling v. United States, 493 U.S. 342, 348 (1990); State v. Agee, 326 N.C. 542, 551 (1990); State v. Lippard, 223 N.C. 167, 170 (1943). Stated differently, evidence is inadmissible under the Double Jeopardy Clause only when it falls within the scope of the collateral estoppel doctrine. State v. Bell, 164 N.C. App. 83, 89 (2004). Accordingly, a prior determination that the defendant did not willfully refuse to submit to a breath test precluded relitigation of the issue in a subsequent trial for impaired driving. State v. Summers, 351 N.C. 620, 626 (2000). A prior acquittal will not, however, bar the admission of evidence of the underlying conduct when the evidence is introduced at a later trial in order to establish the context or chain of circumstances of a different offense. State v. Agee, 326 N.C. 542, 551-52 (1990); State v. Jones, 256 N.C. App. 266, 274 (2017); State v. Solomon, 117 N.C. App. 701, 706 (1995); see also Joseph L. Hyde, When is Double Jeopardy a Rule of Evidence? North Carolina Criminal Law Blog (March 11, 2025), https://nccriminallaw.sog.unc.edu/when-is-double-jeopardy-a-rule-of-evid....

Offensive Collateral Estoppel

The United States Supreme Court has not directly addressed the use of collateral estoppel by the prosecution. Cf. United States v. Dixon, 509 U.S. 688 n.15 (1993) (noting in dicta that “a conviction in the first prosecution would not excuse the Government from proving the same facts the second time”). But several North Carolina cases have allowed the State to preclude relitigation in a later trial of an issue previously decided in the State’s favor. State v. Cornelius, 219 N.C. App. 329, 338 (2012) (no error in instruction that defendant had already been convicted of underlying felony); State v. Dial, 122 N.C. App. 298, 306 (1996) (no error in accepting prior finding of territorial jurisdiction).