LAW OF THE CASELAW OF THE CASELAW OF THE CASELAW OF THE CASELAW OF THE CASE
The law of the case doctrine reflects the principle that
an unreversed decision on a question of law or fact made
during the course of litigation should settle the question
for all subsequent stages of the litigation. State v. Hale,
127 N.J. Super. 407, 410 (App. Div. 1974). The
doctrine is based on the policy that once an issue is
litigated and decided in a suit, relitigation of that issue
should be avoided if possible and the decision should be
treated as the law of the case. State v. Reldan, 100 N.J.
187, 204 (1985); State v. Downey, 237 N.J. Super. 4, 14-
15 (App. Div. 1989); Sisler v. Gannett Company, Inc.,
222 N.J. Super. 153, 159 (App. Div. 1987).
When applied, the doctrine gives binding effect to a
judicial decision. The doctrine is most commonly
applied to give binding effect to appellate decisions if the
case is remanded to a trial court for further proceedings,
or if the case comes before a different reviewing court
which may be asked to reconsider the same issue in a
subsequent appeal. State v. Hale, 127 N.J. Super. 407
(App. Div. 1974). The principle applies in a more
limited manner to decisions of a trial court. Id.
As with application of the doctrine of res judicata,
application of the law of the case doctrine can not be
challenged until a final judgment has been entered in the
case. State v. Hale, supra, 127 N.J. Super. at 410.
However, while res judicata operates as a matter of law to
supersede discretion and preclude relitigation of an entire
claim, id. at 411, the law of the case doctrine essentially
is a non-binding decisional guide, and is a “discretionary
rule of practice and not one of law.” State v. Sarto, 195
N.J. Super. 565, 570 (App. Div. 1984); State v. Hale, 127
N.J. Super. at 411. See also, R. 3:22-5.
The law of the case doctrine comprises two separate
and distinct branches: the first pertains to instances
(often following mistrials) where a judge or a court of
equal position has resolved an issue on an interlocutory
basis; the second pertains to decisions by an appellate
court where the matter has been remanded to a trial
court. Daniel v. New Jersey, 239 N.J. Super. 563, 581-
582 (App. Div. 1990). Application of the doctrine in the
former instances is entirely discretionary; application in
the latter is more stringent because “[i]t is the
responsibility of a trial judge to comply with the
pronouncements of a superior court.” Ibid.
In State v. Reldan, 100 N.J. at 187, the trial court had
decided to suppress evidence, following a hearing. The
State made no effort to appeal that decision. The trial
ended in a mistrial because the jury was unable to reach
a verdict. Before re-trial, the State sought and received a
second suppression hearing, following which the trial
court decided not to suppress evidence. Affirming the
trial court, the Supreme Court held that “‘the law of the
case’ doctrine insofar as it is applied to orders of an
interlocutory nature is itself discretionary. It should be
applied flexibly to serve the interests of justice. A prior
ruling of an interlocutory nature cannot be relitigated in
a subsequent retrial if relitigation would disserve the
interests of justice. Conversely, a prior ruling may be
relitigated if these interests are advanced.” Id. at 205; see
also Hart v. City of Jersey City, 308 N.J. Super. 487, 497-
499 (App. Div. 1998) (law of the case doctrine, an
“adjective concept, ... should not be used to justify an
incorrect substantive result”).To guide the exercise of discretion in applying the
doctrine, a trial court should consider factors that bear on
the “pursuit of justice and ... the search for truth,”
including: (a) whether the State has improperly sought
an unfair advantage over the defendant; (b) whether the
prosecutor is acting in good faith in relitigating an earlier
interlocutory ruling, i.e., whether the issue involved in
the proposed relitigation is related to the circumstances
which give rise to the opportunity to relitigate; (c)
whether relitigation would be unfair to the defendant;
(d) whether evidence was lost by the defendant or gained
by the State as a result of the passage of time and later
relitigation; and (e) whether the ends of the original
ruling, e.g., deterring unlawful police conduct, would
continue to be served by relitigation. State v. Reldan, 100
N.J. at 205-207.In State v. Stewart, 196 N.J. Super. 138 (App. Div.
1984), the Appellate Division held that its decision in an
earlier interlocutory appeal, that is, a decision precluding
the defendant from raising the defense of duress in an
escape prosecution, was the law of the case and was
binding on the subsequent appeal. In the earlier appeal,
the Appellate Division had granted the defendant leave to
appeal and had reached the merits of the controversy, yet
no review of that decision was sought in the Supreme
Court. The fact that the prior Appellate Division
decision precluding defendant from raising the duress
defense was rendered summarily did not mean that the
decision was not binding on the later appeal, since the
prior disposition was one on the merits.Similarly, in State v. Sarto, 195 N.J. Super. at 570-
571, the State argued on appeal that the trial judge was
barred by R. 3:22-5 and the law of the case doctrine from