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Defenses – Issue Preclusion – Discovery Violation in Prior, Dismissed Case Involving Same Charge

State v. Jason C. Miller, 2004 WI App 117, PFR filed 6/7/04
For Miller: Robert T. Ruth

Issue/Holding: Issue preclusion doesn’t bind subsequent action involving exclusion of evidence due to discovery violation, where sanctioned case was dismissed and then reissued and discovery begun anew:

¶22. In the second action, the facts were different in that Miller already had a copy of the expert’s summary. Thus, the first two issues decided by Judge Krueger were not before Judge Flanagan for decision. The issue that Miller raised in his motion did ask Judge Flanagan to decide whether Wis. Stat. § 971.23(7m)(a) required that the expert’s testimony be excluded in this action, but that was not the same as the third issue decided by Judge Krueger. Judge Krueger decided that § 971.23(7m)(a) required exclusion of the State’s expert testimony in the trial then scheduled because the State had not provided a summary within a reasonable time before that trial and did not have good cause. The issue before Judge Flanagan regarding that testimony was whether § 971.23(7m) or some other authority required that the testimony be excluded even though Miller had a summary of the expert’s testimony well in advance of the trial in the second case.

¶23. Miller argues that the factual context of the issue or issues presented to Judge Krueger and to Judge Flanagan are different only because the State “manipulated” the facts by seeking dismissal and then refiling the charges, and we should therefore disregard the differences. However, the doctrine of issue preclusion is not concerned with why the facts are different in the second litigation and, thus, why there is a different issue of law presented. Rather, the doctrine is aimed at limiting litigation of an issue that has actually been litigated. We are satisfied that, by taking the position that its expert’s BAC testimony is admissible in this action, the State is not seeking to relitigate an issue of law or fact decided by Judge Krueger.9

9   We observe that the factual differences, and hence the different legal issues presented in the first and second actions here, distinguish this situation from one in which a motion to suppress evidence based on a legal standard applied to historical facts is decided in a prior action and in the later action a party seeks a ruling on suppression of the same evidence based on the same historical facts and same legal standard. See, e.g.Jones v. State, 47 Wis. 2d 642, 655-57, 178 N.W.2d 42 (1970). Our decision does not address issue preclusion in such a situation.


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