Can a criminal defendant rely on collateral estoppel to preclude the government from proving an element of the crime in a criminal case?

Two hypotheticals:

A woman sues the police for violating the Fourth Amendment because of a warrantless search of an apartment she was staying in for a week. She loses because the government proves that she didn't actually live in the apartment and therefore had no reasonable expectation of privacy.

It turns out she was convicted of a sex offense in college for peeing in public sex offender and required to register whenever she moves. Since she claimed to live at that apartment, the police charge her with failing to register at that address.

Assuming the registration statute applies only to a residence that would be protected under the Fourth Amendment, can the woman use the first case to preclude the government from claiming in the criminal case that she lived at the apartment?


A doctor submitted a FOIA request to the Department of Health and Human Services for records of all the claims for Medicaid reimbursements he had submitted in the last five years. HHS says no such records exist, so the doctor sues. The court finds that no such records exist and rules for the government.

After that case ends, HHS discovers not only that it was mistaken -- the doctor had submitted reimbursements -- but some of them were fraudulent. It charges the doctor with Medicaid fraud, which requires proof that he submitted a claim.

Can the doctor rely on collateral estoppel to defeat this charge?

To be clear, I'm not really interested in answers arguing that the hypotheticals don't meet the elements for collateral estoppel; I'm just wondering whether a civil case can give rise to collateral estoppel in a criminal case, assuming all the criteria are met.

2 Answers 2


Collateral estoppel is inapplicable in both scenarios.

The first scenario leaves no room for issues of collateral estoppel. Whether or not charges for "no-registration" proceed would strictly depend on whether the statute sanctions an offender's mere intent not to register his or her new address.

If the elements of the claim require both (1) actual change of address, and (2) intent not to register it, the fact that the woman in your hypothetical scenario did not actually move precludes any claims about her failure to register what she [unavailingly] alleged to be her "new" address. In the alternative, where mere "intent not to register" meets all the prima facie elements for the new charges, her relocation (if any) as well as the prior judgment on grounds of the Fourth Amendment are irrelevant to these new charges.

In the second hypothetical scenario, collateral estoppel is precluded from the standpoint that issues are not identical and therefore do not involve double jeopardy. See Ashe v. Swenson, 397 U.S. 436,, 444, 448 (1970). HHS's prior failure to produce FOIA records did not involve litigation, does not negate, and is not essential to the fact, that the physician committed fraud. VanDEVENTER v. MNB, 172 Mich.App. 456, 463 (1988) ("Collateral estoppel conclusively bars only issues "actually litigated" in the first action.").

Edited to add/correct reference (see comments)

Beyond these hypothetical scenarios, it should be obvious that collateral estoppel may apply to criminal cases. This is reflected, for instance, in footnote 4 of Yeager v. U.S., 129 S.Ct. 2360; 557 U.S. 110 (2009):

Although the doctrine of collateral estoppel had developed in civil litigation, we had already extended it to criminal proceedings when Ashe was decided.

Another treaty of interest might be Kennelly, Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases (cited here).

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    – feetwet
    Commented Oct 26, 2018 at 19:48


Although it is more frequently referred to as issue preclusion in the this context, the doctrine of collateral estoppel has been applicable to criminal cases for more than 100 years.

The U.S. Supreme Court first addressed the issue head on in United States v. Oppenheimer, 242 U.S. 85, 87 (1916):

Upon the merits the proposition of the government is that the doctrine of res judicata does not exist for criminal cases except in the modified form of the 5th Amendment, that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb; and the conclusion is drawn that a decision upon a plea in bar cannot prevent a second trial when the defendant never has been in jeopardy in the sense of being before a jury upon the facts of the offense charged.

It seems that the mere statement of the position should be its own answer. It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt. It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a protection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the government's consent before a jury is empaneled; or that it is conclusive if entered upon the general issue ... but if upon a special plea of the statute, permits the defendant to be prosecuted again.

We do not suppose that it would be doubted that a judgment upon a demurrer to the merits would be a bar to a second indictment in the same words.

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