I haven’t been at all following the investigation of the killing of Robert Wone, and the trial of Joseph Price, Victor Zaborsky, and Dylan Ward for allegedly obstructing justice in the investigation. But reader Ellen Fredel raised an interesting legal question: The trial judge — the case was tried without a jury — made detailed findings about what she thought happened; she concluded that the government didn’t prove the defendants’ guilt beyond a reasonable doubt, but made various conclusions about specific facts in the case. Wone’s widow is now suing the defendants for wrongful death and on other theories. Would the findings made by the judge in the criminal case have collateral estoppel effect in the civil case, which means that they would be conclusively presumed to be sound, wouldn’t have to be reproven by the plaintiff, and couldn’t be rebutted by the defendants? (Collateral estoppel is also often called “issue preclusion.”)
Generally speaking, criminal judgments can have collateral estoppel effect in civil cases. If Don kills Vic, and is found guilty of murder, then that finding would be viewed as conclusive in a civil wrongful death case brought by Don’s widow Paula (assuming that the elements of the tort are suitably related to the elements of the crime). The theory is that a court has found, in a trial where Don participated, that Don killed Vic; there’s no need for a future court to decide this again. And since Don was found guilty beyond a reasonable doubt, then a fortiori he’s guilty by a preponderance of the evidence, the standard of proof required in the civil case (and by clear and convincing evidence, if that’s the standard of proof required in the punitive damages phase).
But would the judge’s specific conclusions in this case have such effect? I’m not an expert on collateral estoppel law, but my tentative sense is that they wouldn’t. Judgments have collateral estoppel effect, and so do the facts necessarily found as part of the judgment. But I don’t think that judges in criminal cases have the power to render judgments about what likely happened; they only have the power to render judgments about what was proven beyond a reasonable doubt. Moreover, since in this case the judge apparently wasn’t asked to make specific findings, but just decided to make them on her own, I don’t think that there’d be any collateral estoppel effect even for those facts that could be said to have been found beyond a reasonable doubt.
The statements in the judge’s opinion might be interesting and enlightening for the public, but they aren’t part of the judgment, and thus have no preclusive effect. The defendants retain the right to fully relitigate these questions in the civil trial.
But that’s just my tentative sense of the matter; I’d love to hear from people who know more about this subject. Incidentally, note that there is no collateral estoppel effect against the defendant in criminal cases (as opposed to of criminal cases). Criminal defendants are entitled to have the particular jury that is trying them decide the facts anew, without any preclusive effect given to judgments by a previous jury. (And of course any judgments by a previous civil jury couldn’t have preclusive effect against a criminal defendant in any event, since the civil jury’s findings were merely by a preponderance of the evidence, not beyond a reasonable doubt.) But criminal acquittals do have collateral estoppel effect against the government in criminal cases, so that the government may be precluded from arguing a particular factual theory in a later prosecution if it had necessarily been rejected by a jury in an earlier prosecution; the Double Jeopardy Clause has been interpreted as requiring that past verdicts have such effect.
Alast says:
This is an example of non-mutual collateral estoppel or offensive estoppel.
A key point is whether the findings were necessary to the judgment. One can argue that they did not present evidence to rebut certain findings because they were not necessary to rebut as they would not cause conviction. This is further reinforced by the fact an party found not guilty has no grounds to appeal to address an error in such “findings” so the “full opportunity” prong of NMCE is lacking.
July 1, 2010, 1:16 pmWhaddona More says:
Vic’s participation would seem conclusively exculpatory, no? [Whoops, fixed, thanks! -EV]
July 1, 2010, 1:29 pmHouston Lawyer says:
OJ’s acquittal didn’t protect him from Ron Goldman’s suit. I would say in this case that nothing the judge wrote would bind a civil court, since anything less than a conviction is not relevant.
July 1, 2010, 1:31 pmL says:
Both, in fact. Offensive non-mutual collateral estoppel.
I would go one further and say this is the key point. If the judge said the judgment was based on her finding of A, B, C, but she could have gone the same way had she found X, Y, Z, then those findings of A, B, C were not necessary to the judgment, and are relitigable.
Since the defendants were acquitted on the basis that the state hadn’t proven its case, I can’t imagine any finding that was truly necessary to the judgment.
July 1, 2010, 1:34 pmNunzio says:
In Illinois, if defendant didn’t have chance to appeal then collateral estoppel does not apply.
July 1, 2010, 1:46 pmBama 1L says:
I can’t think of any circumstance in which an acquittal would lead to issue preclusion against a defendant in a subsequent civil case, but maybe my imagination is failing me.
In non-mutual collateral estoppel, you are looking for a final judgment on an issue that was fully and fairly litigated and essential to the determination of the proceeding. If you meet those condidtions, then a party is prevented from relitigating that issue.
I don’t think the judge’s findings of fact are “essential to the determination” of the criminal proceeding. Indeed, they don’t even have the character of a final judgment because they aren’t appealable. (The acquitted defendant can’t appeal the acquittal to get more favorable facts found.) The only conclusion you can draw from the acquittal is that the prosecution failed to prove beyond a reasonable doubt some element of the crime. That has so little application to civil litigation as to be worthless.
So the only final judgment here is the acquittal, but that doesn’t preclude civil liability. There can’t be any estoppel against the civil plaintiffs because they weren’t parties to the criminal case and therefore may relitigate the issues.
July 1, 2010, 1:50 pmBama 1L says:
(I should have mentioned that NMCE only applies to parties present in both cases.)
July 1, 2010, 1:51 pmdb says:
The findings of fact are not necessary to the acquittal, so not preclusive. And the acquittal itself is not preclusive because the standard of proof is wrong. Failure to prove something beyond a reasonable doubt does not mean that it cannot be proven by a preponderance of the evidence.
July 1, 2010, 2:07 pmSebastian the Ibis says:
The criminal burden of proof is higher than in civil court.
Therefore a criminal conviction has preclusive effect in a civil case, because a higher standard has been met, but not the reverse (i.e. OJ).
July 1, 2010, 2:14 pmS says:
If there were factual matters on which this defendant took a position and argued that position to the court and the court accepted defendant’s position, the defendant is amenable to Judicial Estoppel in all subsequent proceedings (at least in some jurisdictions).
July 1, 2010, 2:16 pmzippypinhead says:
My understanding (solely from reports in the Washington Post, for what that’s worth) is that the Judge made unhappy noises about simply not believing the defense that some unknown third party committed the murder. The judge suggested she had a “gut” feeling the defendants did something naughty in the house after the crime. But the Judge found that the government didn’t prove the charged obstruction of justice beyond a reasonable doubt, and thus the defendants had to be found not guilty in the bench trial.
No collateral estoppel – the findings weren’t necessary to the verdict, the “gut” statement doesn’t necessarily even rise to a finding by a civil preponderance of the evidence in any event, and the findings aren’t even part of a final judgment (such as even general findings that each element of the crime was proven would have been after a guilty verdict).
On the other hand, the Judge’s comments would strongly suggest that the civil follow-on case may well end like O.J.’s did. Wonder if the civil litigation is designated a related case and will have the same judge at trial?
July 1, 2010, 2:16 pmCraig says:
Eugene: I’m one of the editors of the Robert Wone murder site and saw this in my daily clips and hits roundup. Thanks for bringing attention to the case as it moves to the next phase. The four of us, with no legal background, limped through months and months of trying to learn the criminal process.
Now we change gears and try to school ourselves in civil. I’ll freely admit I don’t understand a word of what you guys are talking about. Luckily, we had a lot of smart attorneys who helped guide and make us halfway smart(ish). Thanks again, Craig & Co.
July 1, 2010, 2:16 pmIdag says:
In some states even a conviction can’t be used to establish collateral estoppel, though a guilty plea can.
July 1, 2010, 2:18 pmS says:
Not collateral estoppel, rather it’s Judicial Estoppel that applies, where the defendant makes representations of fact to a court, and asks a court to adopt those facts, and the court does so.
July 1, 2010, 2:22 pmMGA says:
The Restatement approach would definitely not treat these “facts” as established for purposes of issue preclusion or collateral estoppel. Since the judgment was an acquittal, the “facts” are not essential to the judgment. Moreover, the defendants, having prevailed, cannot appeal; the absence of an appeal cuts strongly against binding them to the “facts” found.
July 1, 2010, 2:34 pmbadger76 says:
The civil case includes a claim for spoliation of evidence. Any findings of fact on the tampering with evidence charge brought against Joseph Price may be relevant with respect to that cause of action, since the criminal court judge said she could not determine the intent of Mr. Price in removing the knife that the judge found was the murder weapon.
The collateral estoppel impact of the criminal case on the wrongful death claim is probably nil since the defendants were not charged with murder. While the criminal court finding that the murder was not committed by an unknown intruder might be helpful in the wrongful death case, the commentators above are probably correct.
Anyone interested in seeing any of the underlying legal documents in the civil or criminal case can find them on the blog, “Who Murdered Robert Wone?”
July 1, 2010, 2:45 pmShaun says:
It’s crystal clear there’s no collateral estoppel (issue preclusion) in the widow’s civil suit. This is true not only for the reasons Eugene (correctly) identifies, but also (and more fundamentally) because the widow wasn’t a party to the criminal action. We don’t grant non-mutual defensive estoppel in such setting both as a matter of common law and because, as the Court has repreatedly held, the Due Process Clause would bar it.
This is an easy one.
July 1, 2010, 2:46 pmPeter Gerdes says:
Wait collateral estoppel really applies to the government in criminal cases?
So if I hire hitman X to kill someone and he is aquitted of the murder I can’t be prosecuted for murder (or at least not on the theory that I hired hitman X to do the murder)?
—-
Anyway as far as this issue is concerned it would be particularly odd if there was collateral estoppel here since the criminal defendant has no means to appeal these judgments. I mean once acquitted I presume the apealete (no I can’t spell) court would dismiss an appeal on findings in his opinion.
July 1, 2010, 2:50 pmtdc says:
In this case the judge stated 1) that there was not an intruder but that statement was not necessary to the verdict and even counter to it 2)that the knife was not switched and 3) that defendants phoned 911 within minutes. 2 & 3 were based on reasonable doubt standard but included clear adoptions of defense-presented facts and expert-witness testimony to so conclude.
July 1, 2010, 2:52 pmddg says:
Err, Shaun, no. It’s not non-mutual defensive issue preclusion that’s at issue; it’s non mutual offensive issue preclusion. The fact that the widow was not a party to the original case is irrelevant following Blonder-Tongue.
There’s no preclusion, however, because none of the facts found by the judge were necessary to the judgment (at least under the Restatement approach). It’d be a different story if it was a conviction.
The lack of an appeal right is a bit of a red herring. You can end up with issue preclusion even where a party could not appeal, depending on the jurisdiction. I’ve seen it happen in patent cases where a patentee prevails on infringement yet had a claim construction it didn’t like. It’s the judgment, not the appeal right, that causes preclusion to attach. In fact, preclusion attaches collaterally even when a judgment is on appeal.
July 1, 2010, 2:53 pmSub Specie AEternitatis says:
Quite apart from the different burdens of proof, collateral estoppel can only be applied against a party to the prior proceeding (or, in some cases, a party which was represented by proxy in a prior proceeding).
Any other rule would invite gamesmanship and injustice. Otherwise BP could contrive to win just one negligence-based action brought by one hapless, oil spill plaintiff and thereafter have all other suits based on the oil spill dismissed.
The civil Wone plaintiffs were not parties to the criminal trial. Hence the findings of the trial, regardless of what they were or which standard of proof was applied, cannot be held against them. If the criminal trial had gone the other way, however, the civil Wone plaintiffs likely would have been able to use collateral estoppel against the criminal Wone defendants–after all, they were in the prior case.
July 1, 2010, 2:57 pmAlast says:
You are incorrect.
A sues B alleging patent infringement. B argues A’s patent is invalid. Court rules that indeed, A’s patent was invalid. A then sues C for patent infringement. C can use NMCE, that the prior court held that the patent was invalid and A can’t re-litigate it.
X is convicted of murdering Y. Y’s widow brings a wrongful death action against X. The criminal determination that X murdered Y is binding on X, and Y’s widow is entitled to use it as offensive estoppel to prove the element of her claim that X murdered Y, and Y can not re-litigate it.
July 1, 2010, 3:23 pmGuest says:
Shaun seems to be answering a question not posed by Eugene, i.e., whether the criminal defendants could use the *acquittal* in their favor to preclude Wone’s widow from litigating some or all of her civil case against them. If that’s the question he’s answering, he’s right that the answer is clearly no. Eugene’s question, however, is whether in her civil case Wone’s widow can use the Court’s so-called “findings” against the defendants. That answer is also no, for the reasons commenters have discussed.
July 1, 2010, 3:24 pmtdc says:
I think the judge’s statement there was not an intruder is little more than an editorial. Also to get facts found that were favorable to defendants to the level of CE or JE would be hard, especially since the plaintiff wasn’t but a witness in the criminal trial.
I do wonder in a criminal trial of any of the 3 for murder though if there wouldn’t be significant CE problems for the prosecutor as to facts found, even if not clear double jeopardy.
July 1, 2010, 3:35 pmAlast says:
Shaun, I misread your post…. you were raising defensive estoppel, not offensive estoppel. My bad.
July 1, 2010, 3:41 pmAlan Polonsky says:
This seems exactly right and what makes the statements of the Judge so pernicious. The defendant could not, and certainly would not, appeal an acquittal because the Judge as finder of fact, reached conclusions that indicated possible civil liability if not criminal liability, even if the Defendant felt those conclusions were not supported by the evidence.
For example, in a trial for homicide based on reckless conduct, if the Trier of fact found that there was negligence but not of a level to support a criminal conviction based on reckless conduct, saying there was negligence, that the defendant would likely contest, should not result in a preclusion of the Defendant again raising that defense that there was no negligence at all in a civil trial.
July 1, 2010, 3:55 pmAndy Rozell says:
Does anybody know why the prosecution didn’t try this to a jury? The facts as recited don’t sound like they’d be so technical as to make it too hard for a jury to understand.
July 1, 2010, 3:59 pmJust from what I’ve read, I think a jury might have convicted on this.
badger76 says:
The judge is a former homicide prosecutor so the U. S. Attorney’s Office (which handles felony cases in DC) may have thought she would be fair to the prosecution. The prosecutor could have refused to consent to the waiver of a jury trial by the defendants.
I agree that a jury faced with four men in a home (one of whom ends up stabbed three times) may convict if the other three men all say the crime was an act of an unknown intruder who left not a trace behind (other than a knife from the home) and took nothing (other than Mr. Wone’s life). The judge basically said she could not figure out whether one of the three may have known nothing about the crime (what she calls “the math problem.”
July 1, 2010, 4:42 pmanonymous says:
There is a Supreme Court case from last year (Bobby v. Bies), in which counsel for the habeas petitioner tried to argue that a “finding” by the Ohio Supreme Court that the petitioner was mildly retarded, en route to a (pre-Atkins) holding that nevertheless affirmed the petitioner’s death sentence established, for purposes of issue preclusion, that the petitioner was retarded and therefore constitutionally ineligible to be executed in the wake of the Supreme Court’s decision in Atkins. The Sixth Circuit apparently accepted this argument (and a related Double Jeopardy argument) and the Supreme Court reversed in a unanimous opinion authored by Justice Ginsburg. The Court’s opinion notes that you can’t try make yourself a partial judgment winner on the basis of “findings” that not only aren’t necessary, but cut against, the actual judgment.
That said, in a subsequent civil case, if the defendants move for summary judgment, I assume that a judge will at least give respectful attention and consideration to the expressed view of the trial judge in the criminal case, if the judge who heard the evidence at the criminal case indicated that the defendants got off the hook only because beyond a reasonable doubt is so much greater than preponderance of the evidence, even though nothing from the criminal trial can be preclusive (in the defendants’ favor because of nonmutuality and also because of the different standards of proof) or in the plaintiffs’ favor (because the only holding was that the defendants were acquitted, the trial court not having been persuaded beyond a reasonable doubt that the defendants were guilty);
July 1, 2010, 4:48 pmsklein11 says:
“The fact that the widow was not a party to the original case is irrelevant following Blonder-Tongue.”
No, it’s not conclusive after Blonder Tongue, in a federal court. It is most definitely relevant.
July 1, 2010, 6:12 pmSub Specie AEternitatis says:
Even by the relaxed standards of citation proper to a forum such as this… that is one of the biggest over-statements I’ve read in a long time. Disposing of an absolute requirement of mutuality is hardly the same as rendering party status “irrelevant.”
July 1, 2010, 6:26 pmRobert B says:
Does anyone know if non-mutual collateral estoppel can go the other direction? Specifically, if the civil suit came first, and the defendents won, would the government be estopped from a criminal prosecution, as the finder of fact in the civil case found not guilty under a lesser standard, thus precluding the possibility that the greater standard in criminals trials could be met?
If not, why? Assume that the fundings of fact must necessarily be the same, so why wouldn’t estoppel apply? Similarly, shouldn’t this also apply to dual federal/state crimes, where the elements of the crime are identical? If they’re different, dual sovereignty rules obviously apply (though I have ethical problems with them), but if the elements are the same, why isn’t the other jurisdiction estopped from prosecuting again?
July 1, 2010, 6:50 pmS says:
Robert: At common law, the State could never be estopped.
July 1, 2010, 7:01 pmneurodoc says:
What are findings of fact, if that’s what the judge served up in conclusion, in the absence of any legal consequences other than mere gratuities?
July 1, 2010, 7:50 pmSub Specie AEternitatis says:
Because the government can’t be estopped because it wasn’t a party to the civil suit. Otherwise, anybody could easily get themselves immunized from criminal liability by winning a civil suit resting on the same facts against a hapless (or interested) private plaintiff.
July 1, 2010, 7:53 pmPeter Gerdes says:
What if the government is a party to the civil suit? Say via some tax related suit.
July 2, 2010, 1:14 amBama 1L says:
I was wondering about this, too. I think it would apply if the government were the the plaintiff in the civil suit and then tried to prosecute criminally. I have no real examples, though. But I think there is some doctrine limiting estoppel of the sovereign to Double Jeopardy.
July 2, 2010, 8:22 amChris Travers says:
Of course, that’s correct. IANAL, but my understanding has always been that non-mutual collateral estoppel only applies to those findings that were necessary for the final judgement or verdict. Obviously if a judge finds that there was negligence but not to a criminal level during a criminal trial, that’s not strictly speaking necessary for the acquittal that follows, so it would seem subject to re-litigation.
Yeah, IANAL, but that was my first impression.
In addition to double jeopardy questions, I suspect that there might be other considerations too. IANAL, but as I think through issues, I would expect such similar to work differently whether going from a higher standard of proof (criminal) to a lower one (civil) rather than vice versa. I cannot imagine that the government, not being able to prove civil liability, would be allowed to try to prove criminal liability on the same facts and laws, but I also cannot imagine criminal trials being bound by the results of third party lawsuits. Maybe a real lawyer can correct me. I would expect that previous judgements might be presentable as evidence, however.
July 2, 2010, 9:32 amSub Specie AEternitatis says:
You are absolutely right. What is not right is anybody who says no less than four times in a post that he is not a lawyer making statements about collateral estoppel like that. What if the guild found out?
July 2, 2010, 10:02 amDonald Kilmer says:
Well, if the civil case is in federal court, and the amount in controversy is more than $20, might the civil defendant have a back up theory (other than the well discussed estoppel) that he has a “right to a jury trial” on the facts in the civil case? And if he’s not in federal court, maybe we’ll get to comment on another incorporation case.
July 2, 2010, 10:04 amChris Travers says:
I am not sure that’s the only rule that would make sense. It does, however, show the dangers in valuing consistency (everyone against BP wins or everyone against BP loses). For example, one could do a number of things:
1) Third parties might be barred from re-litigating specific facts unless they can offer specific new evidence. In this way, findings of a prior trial court would be subject to deference but not insurmountably so.
2) “Necessary” for the judgement might be interpreted far more narrowly regarding third party plaintiffs than for previous parties.
I know that this is not how our system works, but it’s worth remembering that there are many other possible systems that might work.
July 2, 2010, 10:04 amSub Specie AEternitatis says:
It would have to be the same government (i.e., no mixing state and federal governments) and the same interest (i.e., the government would have needed to prove the same or very similar set of facts, rather than being involved only tangentially or a separate issue). Even then, I cannot recall such a case, am too lazy to search, and–given the modernity of the doctrine of non-mutual collateral estoppel–there may be contrary precedent.
Still, if these conditions hold, I think that collateral estoppel should apply and would be comfortable so arguing to a court.
July 2, 2010, 10:09 amBama 1L says:
In 1791, the conviction would have estopped the repeat defendant from arguing his innocence a jury, or at least that’s what a court would say.
If the previous criminal proceeding were a jury trial, the plaintiff could make a (similarly pointless) Seventh Amendment argument that the issues had been tried to a jury and could not be retried.
The Seventh Amendment basically lets you tell the court “If we get to trial, I’d like a jury.” It really doesn’t protect you from pretrial disposition of part or all of the case.
July 2, 2010, 10:14 amDonald Kilmer says:
But that was my point. The first trial WASN’T tried to a jury.
July 2, 2010, 10:58 amMalvolio says:
Your imagination or my misunderstanding of the law. I would think someone who won on an affirmative defense (such as self-defense) might be able to argue that since he proved his innocence beyond a reasonable doubt, such a legal finding would be held automatically as valid against the much more forgiving standard of preponderance, even though the plaintiff wasn’t officially a party to the criminal trial.
July 2, 2010, 2:58 pmDavid Schwartz says:
Malvolio: Most affirmative defenses do not have to be proven beyond a reasonable doubt. It would be nearly impossible to prove self-defense beyond a reasonable doubt and the law does not require such.
I believe that in most jurisdictions, as soon as you raise the affirmative defense of self-defense (with some plausible theory and some facts to support it), the prosecution must prove beyond a reasonable doubt that you did not act in self-defense. With an insanity defense, the burden of proof varies by jurisdiction. I think most States require the defense to prove insanity either by clear and convincing evidence or by a preponderance.
If there are any affirmative defenses the defense in a criminal trial must prove beyond a reasonable doubt, I don’t know what they are.
July 2, 2010, 4:20 pmBama 1L says:
That sounds like a non-starter. The Supreme Court has held violates Due Process to bind a non-party to the outcome of a proceeding. And of course the history of collateral estoppel is that it bound the parties only. The victim-plaintiff gets a chance to overcome the defense. Under this doctrine, you’d have to prove that the prosecution adequately represented the victim-plaintiff’s interest. That’s just not going to be the case and no court will accept it.
If it helps, think of collateral estoppel as a “you already lost” doctrine. The party using it has to be able to say “you already lost.” “I already won” by itself doesn’t work. In this example, the defendant can say to the victim-plaintiff “I already won” but not “you already lost.”
If there had been a conviction, the victim-plaintiff could say to the defendant “you already lost” and the defendant would be estopped from relitigating the battery or whatever.
Otherwise, what you say would be a sensible rule and we’d need David Schwartz’s logic to overcome it.
July 2, 2010, 7:47 pmDavid Schwartz says:
Malvolio: What if the first judge got it wrong and the parties settled without appealing?
Getting one full and fair chance to litigate and argue a contested fact is sufficient. Getting zero is not.
July 3, 2010, 11:17 pmpaul mckaskle says:
I’m replying late since I’ve been out of town until now. As someone who taught Civ Pro for 39 years, I agree with Alast, the first respondent.
July 4, 2010, 7:11 pm