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Comparing Double Jeopardy, Res Judicata, and Collateral Estoppel

Double Jeopardy

The concepts of due process and finality of judgments are cornerstones of the American litigation system. The Constitutional guarantee to due process means that litigants, and more specifically defendants, are entitled to a fair trial. Related to the concept of a fair trial is the idea that judgments following trial should be final so that the parties can have closure and not live in fear of being dragged into court over the same claim.

There are three key doctrines that ensure fairness and finality in both criminal and civil trials: double jeopardy, res judicata, and collateral estoppel. This article examines each doctrine and the preclusive effect that each has to prevent parties from relitigating the same cases, issues, and causes of action.

Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment guarantees that criminal defendants cannot be prosecuted twice for the same crime. The Fifth Amendment specifically states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Most state courts adopted statutes with similar language. The general concept of Double Jeopardy is that once a defendant has been tried and acquitted of an offense, he or she cannot be prosecuted again on the same charge. However, a defendant can be tried a second time when his prior conviction for that same offense has been set aside on appeal. Double Jeopardy applies to criminal felony, misdemeanor, and juvenile cases.

The Supreme Court discussed the importance of double jeopardy in Green v. United States. In Green, the defendant was tried for one count of arson and a second count of first-degree murder in relation to the same incident. The jury found Green guilty of arson and second-degree murder. The jury verdict was silent as to the first-degree murder charge. The trial judge entered the judgment and dismissed the jury. On appeal, the Court of Appeal reversed the conviction on the basis that it was not supported by the evidence. The case was remanded to the trial court for a retrial. The defendant was again found guilty—this time of arson and first-degree murder.

Defendant appealed following the second trial on the basis of former jeopardy. The Court of Appeals confirmed the conviction and rejected his former jeopardy defense. On certiorari, the Supreme Court reversed the first-degree murder conviction based on the reasoning that the second trial put the defendant in jeopardy twice for the same offense in violation of the Fifth Amendment.

The Court described the importance of double jeopardy, stating “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

The Supreme Court further reasoned that on remand, Green was not tried for the same offense of second-degree murder. Rather, Green was tried and convicted for the higher offense of first-degree murder. Because the jury found Green guilty of second-degree murder at the first trial, he should have been retried only on that charge. The Supreme Court found that defendant’s jeopardy for first degree murder ended when the jury concluded at this first trial that he was not guilty of first-degree murder. He could not therefore be tried again for that offense without being placed in double jeopardy.

Although a criminal defendant cannot be retried for the same crime, a criminal defendant may be charged with more than one offense stemming from the same incident. In Blockburger v. United States, the Supreme Court held that double jeopardy does not prevent a defendant from being tried for multiple crimes in the same prosecution so long as each offense requires proof of a fact that the other offenses do not.

Double jeopardy is an important part of criminal procedure that limits the ability of the government to try a defendant for the same crime multiple times indefinitely.

Collateral Estoppel

In addition to double jeopardy, courts can limit parties from re-litigating issues multiple times through the doctrine of collateral estoppel. Collateral estoppel, which is also called issue preclusion, is a doctrine in both civil and criminal law that protects litigations from the burdens of relitigating an identical issue with the same party. The purpose of collateral estoppel is to promote judicial economy, preserve the court’s resources, and promote finality.

Under collateral estoppel, a valid and final judgment in one case binds the parties in future cases on different causes of action where the same issues were already litigated and decided.

In order for collateral estoppel to apply in civil law, three elements must be met: (1) there must be a prior litigation with an identical issue; (2) the issue must be actually litigated and decided on the merits where the parties had a full and fair opportunity to present litigate their case; and (3) the issue must have been a necessary part of the court’s judgment. An “issue” is a fact or question of law that was disputed in a prior case.

Collateral estoppel can be either “defensive” or “offensive.” Defensive estoppel is when a defendant asserts collateral estoppel against a plaintiff who litigated and lost a prior lawsuit. Offensive estoppel is when a plaintiff asserts the doctrine against a defendant who lost a prior lawsuit on the same issue. The Supreme Court noted in Parklane Hosiery Co. v Shore, that the use of offensive collateral estoppel can be particularly unfair to defendants where a defendant in the first action was forced to defend a case in an inconvenient forum.

In Parklane, stockholders brought a class action against a corporation and certain officers and directors alleging that defendants used a false and misleading proxy statement in violation of the Securities Exchange Act of 1934. Before the lawsuit came to trial, the Securities and Exchange Commission instituted an action for an injunction against the corporate defendants on the same basis that the proxy statement was false and misleading. The District Court held that the statement was in fact false and misleading and entered a judgment in favor of the Commission.

In the civil case, the plaintiff stockholders invoked offensive collateral estoppel and moved the court for partial summary judgment on the basis that the defendants were collaterally estopped from relitigating the issues that were resolved against them. The lower court denied the motion on the grounds that invoking collateral estoppel would deprive defendants of their Seventh Amendment right to a trial by jury.

The Supreme Court overturned the denial of summary judgment and held that plaintiffs could use offensive collateral estoppel to prevent defendants from relitigating the same issues of whether they made false and misleading statements. The Court noted that determining whether offensive collateral estoppel can be used includes factors like whether the plaintiffs could have easily joined defendants in the earlier action or whether offensive collateral estoppel would be unfair to the defendant.

In this case, the defendants were precluded from relitigating the issue of material falsity because defendants had every incentive and opportunity to vigorously litigate the same issues in the Commission’s lawsuit. Defendants should have known that an adverse judgment in the Commission’s lawsuit would likely be used as a basis for subsequent lawsuits from private parties. The Court further held that the use of offensive collateral estoppel did not undermine the defendants’ Seventh Amendment rights.

Collateral estoppel is another doctrine similar to double jeopardy that can be used to prevent subsequent lawsuits on the same issues.

Res Judicata

Res judicata, or claim preclusion, is similar to double jeopardy, but applies in civil cases. 'Res Judicata' is Latin for “judged matter.” Under res judicata, a judgment on the merits in a prior lawsuit bars a second lawsuit on the same claim or cause of action that was previously decided. Under this doctrine, a plaintiff who wins a lawsuit may not sue the defendant on the same cause of action in a second lawsuit. Additionally, a plaintiff who loses a lawsuit cannot bring a second lawsuit against the same defendant on the same cause of action.

Similarly, a plaintiff with multiple causes of action against the same defendant should bring all claims in one lawsuit or else the plaintiff may lose the ability to bring the claim.

Generally, a party who wants to use res judicata to prevent a second lawsuit on the same cause of action must show: (1) the cause of action in the prior lawsuit is the same cause of action in the second lawsuit; (2) both lawsuits involve the same parties; (3) that the prior judgment was a final judgment: and (4) all parties were given a full and fair opportunity to be heard in the original lawsuit.


Double jeopardy, collateral estoppel, and res judicata are important doctrines that serve two main purposes. The first purpose is to prevent parties from having to re-litigate issues where a court renders a final judgment. Without this concept of finality, criminal and civil defendants would be subjected to the risk of being dragged into court multiple times over the same issues. This threat can be particularly daunting for criminal defendants, who would have to face the humiliation and stress of facing trial multiple times over the same alleged crimes.

The second purpose is to preserve the resources of the court and the parties. Before the Corona-virus shutdown, courts across the country faced routine backlogs in processing court filings and moving cases through the system to trial. Following the shutdown, courts face even bigger backlogs due to the court closures. The finality ensured by double jeopardy, collateral estoppel, and res judicata prevents courts from using their limited resources to retry claims or issues already decided. This is crucial to promoting judicial efficiency and to the operation of the American trial-by-jury system.

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