8. COLLATERAL ESTOPPEL
Not many people understand collateral estoppel. Simply stated, while double jeopardy prevents a defendant from being tried twice for the same offense, collateral estoppel prevents a defendant from being tried twice on the same element once "that same element has been determined by a competent court in his favor". The example usually cited for clarification is that a defendant who is arrested for DUI (misdemeanor) and manslaughter (felony), alleging that while drunk, he ran down a few people, killing same. At the misdemeanor trial and preliminary hearing, the Commonwealth cannot prove, beyond a reasonable doubt, that the defendant was driving. "He was out of the car picking up bodies when I arrived". He is acquitted of the misdemeanor DUI and the felony is certified.
At trial on the felony his lawyer, smart and obviously well paid, moves to dismiss alleging collateral estoppel. "To prove the manslaughter, you must prove the defendant drove the vehicle. That same question has already been resolved by a court of competent jurisdiction (DUI = General District Judge) between the same parties in a manner favorable to the defendant. The doctrine of collateral estoppel bars retrial of that issue." See Clodfelter v. Commonwealth, 218 Va. 98, 235 S.E. 2d 340.
Whenever you have a misdemeanor and a felony arising from the same circumstances, remember collateral estoppel. In fact, set it up. Make sure that the dismissal is for the one issue that you need. Get the judge to enter on the misdemeanor warrant your stipulation to every element of the offense except the common element. Stipulate to drunk, stipulate to venue, stipulate to death, just do not stipulate to driving