Vanderbilt Law Review

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In criminal litigation, similar doctrines have been invoked. Double jeopardy has precluded a second prosecution of an individual because of a single group of operative facts. This is parallel to claim preclusion which bars relitigation of a claim. When sequential prosecutions for different crimes occur there has been a bar against relitigation of a specific issue. This is issue preclusion. Issue preclusion has also been invoked where civil and criminal proceedings are involved serially. With some frequency the courts have been willing to use preclusion/res judicata where the precluding judgment is criminal and the precluded litigation is civil. On the other hand, where a civil action is followed by a criminal prosecution, the courts have been more reluctant to use preclusion/res judicata. Since it is true that res judicata / preclusion is available in both criminal and civil litigation, there would seem to be no reason to bar the application of the doctrine simply because the initial litigation was in one court--criminal or civil--and the subsequent contest was in the other. The rationale underlying preclusion generally supports its application regardless of the type of litigation involved. This article shall deal only with the matter of issue preclusion. Double jeopardy and claim preclusion are not within the scope of this treatment.

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