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Defenses – Issue Preclusion

State v. Philip M. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, reversing State v. Canon, 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999)
For Canon: Alan D. Eisenberg

¶1 The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(1)(a)(1997-98) for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue, but where the State claims to have discovered new evidence suggesting that the defendant falsely testified regarding that issue.

Balancing the interests protected by the double jeopardy clause (principally, finality of litigation) against the competing interest (integrity of the judicial system), ¶7:

¶23 … [T]he appropriate balance between the competing policy interests can be struck with the following narrow newly discovered evidence exception. The must establish by clear and convincing evidence that: (1) the evidence came to the state’s attention after a trial; (2) the state was not negligent in failing to discover the new evidence; (3) the new evidence must be material to the issue; and (4) the evidence must not be merely cumulative to the evidence which was introduced at trial. These requirements are based on the longstanding rule governing the granting of a new trial because of newly discovered evidence in a criminal case….

¶25 We stress that this holding does not determine whether the ‘new evidence; alleged in the state’s perjury complaint against Canon meets the newly discovered evidence test set forth above. We determine only that the doctrine of issue preclusion does not constitutionally bar the state from pursuing perjury charges against Canon. The state still has the burden to prove by clear and convincing evidence that its alleged newly discovered evidence passes muster under each of the four prongs to the newly discovered evidence test. For this reason, Canon is entitled on remand to a separate hearing at which he can put the state to its proof.

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