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. The article examines the general requirements of issue preclusion and the evolution of issue preclusion in both the civil and criminal context. 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, the first suit is criminal and the second suit is civil, and where both the first and second action is criminal. The article then analyzes whether the approach taken by the courts in the civil area should be applied to the criminal area, and the appropriate parameters of that approach. Finally, the article concludes that although the courts should allow the government to use offensive collateral estoppel in criminal cases, the courts must be vigilant in ensuring that there is no prejudice.
Michelle S. Simon, Offensive Issue Preclusion in the Criminal Context: Two Steps Forward, One Step Back, 34 U. Mem. L. Rev. 753 (2004), available at http://digitalcommons.pace.edu/lawfaculty/212/.