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Defenses – Issue Preclusion – “Offensive” Use – Sexually Violent Person Proceeding

State v. Ronald G. Sorenson, 2001 WI App 251, PFR filed
For Sorenson: T. Christopher Kelly

Issue1: Whether issue preclusion (collateral estoppel) may be used “offensively” by the state in a Ch. 980 trial to bar a respondent from presenting evidence that s/he didn’t commit the offense which underlies the qualifying conviction.


¶28  Accordingly, we hold that the doctrine of issue preclusion is available for use offensively in Chapter 980 trials.  When a respondent was previously convicted of a sexually violent offense in a trial, issue preclusion may be used to prevent the respondent from offering evidence to show that he or she did not commit the prior offense.

Issue preclusion is typically a “defensive” device used to preclude a plaintiff from relitigating a previously litigated issue. But it may also be used “offensively,” as proof of a fact determined adversely in prior litigation. Here, the state seeks to use this doctrine to prove up conclusively — to prevent Sorenson from challenging — the fact of the prior, SVP-qualifying conviction. Issue preclusion may be used offensively in civil cases, Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993), but Sorenson argues (a) that such use is inappropriate in criminal cases and (b) criminal rules apply to an SVP trial. The court recognizes that (a) is a novel question, but doesn’t reach it, assuming without deciding that offensive use is prohibited in criminal cases, ¶17. The question then becomes one of statutory construction, namely whether the absorption of criminal-proceeding rights via § 980.05(1m) bars offensive use of issue preclusion. The court says no, largely for policy reasons (legislature didn’t intend crime victims to be put through the ordeal of a second trial), ¶26. As to the threshold unresolved issue, see U.S. v. Smith-Baltiher, 9th Cir No. 03-50375, 9/9/05, to the effect “that collateral estoppel (may) not be used in a criminal case to prevent a defendant from contesting an element of the offense.”

Issue2: Whether, under the particular facts of this case, issue preclusion was used unfairly against Sorenson to prevent him from presenting evidence that he didn’t in fact commit the underlying sexually violent offense.Holding: Because the trial court didn’t meaningfully determine whether it was equitable to permit the state to prove the prior offense with the use of conviction evidence, the matter must be remanded so that the trial court can exercise its discretion appropriately; if issue preclusion is deemed proper, the SVP judgment is sustained, if not it will be reversed. ¶¶26-36.

The court views the problem not as whether Sorenson should be allowed to present evidence undercutting the prior conviction, but rather as whether the state should have been allowed at all to use the prior conviction to establish the fact of the prior assault, ¶31. The partial dissent points out that this isn’t quite right, that Sorenson should be allowed to present at trial evidence which the fact-finder would weigh to determine the likelihood he would commit future violent acts, ¶¶37 et seq.


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