397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970),
to be an element of double jeopardy protection. In a
criminal setting, however, the State’s attempt to use
collateral estoppel against a defendant is problematic and
disfavored by the courts. See Simpson v. Florida, 403 U.S.
384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971); State v.
Ingenito, 87 N.J. 204 (1981).
In State v. Cormier, 46 N.J. 494 (1966), defendant
was tried and acquitted on a conspiracy charge that he
obtained money from a bank through false statements
about his company’s condition. Defendant was later
tried and convicted on the substantive charge of
unlawfully obtaining monies from the bank through the
same false statements. The question presented was
whether defendant’s conviction violated principles of
either double jeopardy or res judicata or collateral
estoppel. The Supreme Court ruled that although
defendant’s conviction was not barred by double
jeopardy protection, collateral estoppel barred relitigation
of a key issue in the case. The State’s failure to persuade
the jury that the loans were made on the basis of fictitious
invoices rather than genuine purchase orders was no
reason for allowing the State to try the issue again.
Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25
L.Ed.2d 469 (1970), held collateral estoppel as
“embodied” in the Fifth Amendment guarantee against
double jeopardy precludes relitigation of an issue already
“necessarily determined.” Accordingly, after acquittal on
a charge of robbing one victim, by a jury verdict that
necessarily found defendant was not one of the robbers,
defendant could not be tried for robbery of a second
victim. To do so would relitigate the issue of defendant’s
identify as the robber. See also State v. Yormark, 117 N.J.
Super. 315 (App. Div. 1971), certif. denied, 60 N.J. 138
(1972), cert. denied sub nom. Mulvaney v. New Jersey, 407
U.S. 925, 92 S.Ct. 2459, 32 L.Ed.2d 812 (1972); State
in the Interest of A.B.M. 125 N.J. Super. 162 (App. Div.
1973), aff’d 63 N.J. 531 (1973). For post-Ashe United
States Supreme Court collateral estoppel cases, see One
Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93
S.Ct. 489, 34 L.Ed.2d 438 (1972) (doctrine does not bar
subsequent civil proceeding; double jeopardy does not
bar imposition of criminal and civil penalty for same act);
Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32
L.Ed.2d 798 (1972) (acquittal of felony murder bars
subsequent trial of underlying felony); Harris v.
Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212
(1971) (bomb killed two persons; acquittal on trial of one
bars trial on other); Simpson v. Florida, 403 U.S. 384, 91
S.Ct. 1801, 29 L.Ed.2d 549 (1971) (robbery of store
manager and customer; acquittal regarding manager bars
trial regarding customer).According to State v. Ebron, 61 N.J. 207 (1972), the
burden of proving collateral estoppel is on the defendant.
A defendant must show by examination of the record that
an issue he seeks to exclude was “necessarily determined”
in the prior proceeding.United States v. One Assortment of 89 Firearms, 465
U.S. 354, 104 S.Ct. 1099, 79 L.Ed. 2d 361 (1984) held
that acquittal of criminal charges involving firearms does
not preclude a subsequent in rem forfeiture proceeding
under 18 U.S.C. § 924(d) against the same firearms. The
Court ruled that neither collateral estoppel nor double
jeopardy will bar civil, remedial forfeiture proceeding
commencing after an acquittal on related criminal
charges.State v. Redinger, 64 N.J. 41 (1973), ruled that
collateral estoppel applies only where the person involved
was a party in both the earlier and the later proceedings;
it does not apply to a person who was only a witness at an
earlier trial. Therefore, collateral estoppel does not bar
prosecution of a witness for perjury although the witness
testified at a former trial and his testimony resulted in
acquittal of the defendant. In accordance with State v.
Currie, 41 N.J. 531 (1964), the Redinger Court held that
where the witness testified at a prior municipal court
hearing relating to a charge of careless driving, he could
be prosecuted for perjury based upon his testimony.State v. Davis, 67 N.J. 22 (1975), held that collateral
estoppel must be asserted by a timely objection at trial,
and a defendant may not wait until the appellate stage to
raise the issue. The trial judge must be afforded a proper
opportunity to rule on the question, on the basis of a
suitable record. Failure to advance the issue at trial,
therefore, constituted a waiver of the issue.In State v. Gonzalez, 75 N.J. 181 (1977), two
codefendants were arrested and charged with possession
of a weapon. In addition, one of the defendants was
charged with possession of cocaine. Both the weapon and
the cocaine were discovered by police in the car in which
defendants were riding. One defendant filed a motion
to suppress, resulting in suppression of seized evidence.
The other defendant, unable to file a contemporaneous
motion, later filed a motion to suppress, which was
denied. In each instance, the motion turned on the
credibility of the trooper’s testimony that he was able to
identify a partially smoked cigarette on the rear floor of
the car as a marijuana cigarette. The Supreme Court