DISMANTLING CRIMINAL RES JUDICATA IN
I.
State v. Ellis
INTRODUCTION
There are three major protections available to criminal defendants against repetitious prosecution. The double jeopardy
clause of the Fifth Amendment to the United States Constitution is the primary source.' Res judicata and collateral estoppel
have emerged from the realm of civil law as supplemental protections when the doctrine of double jeopardy is inapplicable.'
All three protections have been solidified in federal due process
applicable to the states through the fourlitigation, s and made
4
teenth amendment.
In State v. Ellis,5 the Connecticut Supreme Court applied
these doctrines, together with intricate statute of limitations issues, to determine the validity of an indictment for a brutal kidnapping and murder.6 Although double jeopardy was not directly applicable to the facts in Ellis, the doctrine played an
integral role in the majority's analysis of res judicata and collateral estoppel.7 The Ellis court addressed two issues. The first
was whether a statute of limitations, in effect on the date of the
killing, was intended to apply to capital felonies as well as murder.8 The court held that it was not.9 The second was whether
1. U.S. CONST. amend. V. The fifth amendment provides that no person shall "be
subject for the same offense to be twice put in jeopardy of life or limb." Id.
2. See United States v. Oppenheimer, 242 U.S. 85 (1916). In Oppenheimer,Justice
Holmes solidified the applicability of res judicata and collateral estoppel to criminal
matters. Id. at 87. For a further discussion of Mr. Justice Holmes' tour de force, see
infra, notes 19 and 34.
3. See, e.g., Green v. United States, 355 U.S. 184 (1957) (federal double jeopardy
protection); Oppenheimer, 242 U.S. 85 (federal application of res judicata and collateral
estoppel).
4. See Ashe v. Swenson, 397 U.S. 436 (1970) (res judicata and collateral estoppel
applicable to states); Benton v. Maryland, 395 U.S. 784 (1969) (double jeopardy applicable to states). See infra notes 24 and 25 for more extensive discussions of Ashe and
Benton.
5. 197 Conn. 436, 497 A.2d 974 (1985).
6. Id. at 438-39, 497 A.2d at 976.
7. Id. at 471-72, 497 A.2d at 992-93.
8. Id. at 440, 497 A.2d at 977. For the pertinent statutory language see infra note
38.
9. Ellis, 197 Conn. at 460, 497 A.2d at 987.
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the trial court had erroneously interpreted res judicata as a
broad doctrine of claim preclusion.' 0 The Ellis court concluded
that the trial court had committed such error, and reduced the
scope of the doctrine to issue preclusion."
This Comment will explore the evolution of the above-mentioned protections of the accused. It will then provide a critical
analysis of the Ellis court's overhaul of the statutory and constitutional doctrines. Finally, it will highlight the potential impact
of Ellis on the Connecticut criminal justice system.
II.
A.
BACKGROUND
Historical Underpinnings
Early stirrings of the concept that eventually crystallized
into modern double jeopardy protection may be found in thirteenth century Spanish and English common law.'1 The doctrine
that no man is to be put twice in jeopardy for one and the same
offense' has remained an extraordinarily vital part of western
criminal jurisprudence,' 4 and is embodied in the Fifth Amendment to the United States Constitution. 15 Unfortunately, American case law has created a vast maze of contradictory decisions
in interpreting the simple but vague language of the double
jeopardy clause.' As a result, double jeopardy law is often con10. Id. at 462, 497 A.2d at 988.
11. Id. at 469, 497 A.2d at 991.
12. See generally Note, Double Jeopardy and the Concept of Identity of Offenses,
7 BROOKLYN L. REV. 79 (1937) (tracing early development of double jeopardy protection
in English and Spanish common law). See also Kepner v. United States, 195 U.S. 100,
120-21 (1924), in which several thirteenth century Spanish authorities to this effect are
considered. Two early English cases are Vaux's Case, 4 Co. Rep 44, 45 (K.B. 1590) and
Darby's Case, 4 Co. Rep 40 (K.B. 1583).
13. The traditional Latin phrase is "nemo debet bis vexari, pro una et eadem
causa." Note, supra note 12, at 79 n.1.
14. Id. See generally Westen, The Three Faces of Double Jeopardy:Reflections on
Government Appeals of Criminal Sentences, 78 MICH. L. REV. 1001 (1980) (suggests tripartite approach to viewing vast jurisprudence of double jeopardy, one prong of which
focuses on an accused's interest in finality); Lugar, Criminal Law, Double Jeopardy and
Res Judicata, 39 IowA L. REV. 317 (1953) (double jeopardy defense so frequently used
that even members of the general public are familiar with its principles).
15. U.S. CONST. amend. V.
16. See Note, supra note 12, at 81-93 (discussion of major attempts to define parameters of "same offense"). Two early decisions illustrate this tradition of contradiction. In State v. Cooper, 13 N.J.L. 361 (1833), a conviction of arson barred a prosecution
for murder since the murder charge grew out of the same criminal act. Id. at 375. Yet in
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RES JUDICATA
fusing and unpredictable.1"
B. Criminal Res Judicata
Res judicata has long been applied in English criminal proceedings," s and its use has been paralleled in the United States.19
In the United States, res judicata as claim preclusion in criminal matters is typically invoked when a defendant has been acquitted in a prior proceeding, and is unable to use double jeopardy to defend against a new similar action."1 Incongruously, the
res judicata defense is not used as often as the strength of its
underlying principles would countenance.2 2
the case of Hall v. State, 134 Ala. 90, 32 So. 750 (1902), on the basis of a single act of
intercourse, a defendant was permitted to be indicted for seduction after he was acquitted of rape. Id. at 114, 32 So. at 758. The court reasoned that the defendant could not
have been convicted of rape on the same evidence proving the seduction charge. Id. at
115, 32 So. at 758.
17. See Note, supra note 12, at 85. The author observes that much confusion resuits when courts vacillate between the "same evidence" and the "same transaction"
tests. These tests are used to resolve double jeopardy "same offense" questions, and are
discussed infra notes 30-32 and accompanying text.
18. See Regina v. Miles, 24 Q.B.D. 423 (1890). In Regina, a defendant had been
convicted of assault by a court of summary jurisdiction and had been discharged for
good behavior. Id. at 424. Thereafter, the defendant was arraigned before the central
criminal court and convicted under an aggravated form of the same offense. Id. at 426.
The conviction was quashed, and Justice Hawkins declared that a criminal adjudication,
"whether it takes the form of an acquittal or conviction, is final as to any matter so
adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the
same offense." Id. at 431.
19. In Oppenheimer, Justice Holmes vehemently declared that the safeguards of
the person are as powerful as those protections against a liability in debt. United States
v. Oppenheimer, 242 U.S. 85, 88 (1916). He stated that "[iun this respect the criminal law
is in unison with that which prevails in civil proceedings. Id. (quoting Regina v. Miles, 24
Q.B.D. 423, 431 (1890)). But see Stone, Res Judicata in Criminal Cases, 27 TExAs L.
REv. 231 (1948) (Texas courts consistently refused to apply res judicata in criminal
cases).
20. See Oppenheimer, 242 U.S. 85 (res judicata in criminal cases carries broad impact of claim preclusion); see also State v. Aillon, 189 Conn. 416, 423, 456 A.2d 279, 283
(1983) (judgment on merits of claim absolutely bars later action on same claim); In re
Juvenile Appeal, 190 Conn. 310, 313, 460 A.2d 1277, 1280 (1983) (same).
21. See, e.g., United States v. Perrone, 161 F. Supp. 252, 256-57 (S.D.N.Y. 1958), in
which several defendants were acquitted of transporting stolen goods but the jury hopelessly disagreed on the conspiracy charges. On retrial of the conspiracy counts, the court
ruled out the applicability of double jeopardy and noted the possible operation of res
judicata. Id. at 257. See generally Lugar, supra note 14, at 330 (overview of situations
where doctrine applicable).
22. See Currie, Res Judicata:The Neglected Defense, 45 U. CHt. L. REv. 317 (1978)
(various restrictions that state courts impose upon the doctrine's applicability); cf. RE-
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C.
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Applicability at the State Level
Res judicata in criminal cases traditionally has been applied
relatively equally between federal and state courts. 3 Nonetheless, in Ashe v. Swenson the United States Supreme Court specifically imposed collateral estoppel upon state criminal proceedings as an integral component of fourteenth amendment Due
Process. 4 The Court in Benton v. Maryland had imputed fifth
amendment double jeopardy standards upon the states. 5 The
basic underlying policy that no man may be tried twice for the
same criminal act is consistently recognized throughout this
country's numerous jurisdictions. 6 Much confusion results, how(SECOND) OF JUDGMENTS, § 48 comment a (Tent. Draft No. 1, 1973) (fairness
to defendant and sound judicial administration are factors to justify truncating a plaintiff's case).
23. See, e.g., Oppenheimer, 242 U.S. 85 (definitive federal statement of doctrine);
Aillon, 189 Conn. 416, 456 A.2d 279 (1983) (defendant convicted of three murders; retrial
ended in mistrial; court in third trial denied defendant's request to re-argue double jeopardy defense on grounds of res judicata while recognizing reverse applicability of doctrine); State v. Clemmons, 207 N.C. 276, 176 S.E. 760 (1934) (defendant acquitted of
felonious burning of house and reindicted for murder of victim who died in blaze).
24. Ashe v. Swenson, 397 U.S. 436, 437 (1970). In that case, players in a poker
game had been robbed by three or four masked gunmen, and the defendant was subsequently arrested. Id. In the first trial the defendant was charged with robbing one of the
players, and was acquitted by the jury for insufficient evidence. Id. at 439. He was then
tried for having robbed a different player and was convicted. Id. at 440. The United
States District Court for the Western District of Missouri and the Court of Appeals for
the Eighth Circuit affirmed the conviction. Id. at 440-41. The Supreme Court reversed
and remanded the case, Id. at 447, retroactively applying the doctrine recently declared
in Benton v. Maryland, 395 U.S. 784 (1969). Ashe, 397 U.S. at 437. See infra note 25 and
accompanying text for a discussion of Benton.
25. Benton, 395 U.S. at 794. A defendant in a first trial was convicted of burglary,
but the jury acquitted him of larceny. Id. at 786. This time he was convicted of both
offenses, despite his objection and motion to dismiss the larceny charge. Id.
After the Maryland Court of Special Appeals and the Circuit Court of Appeals denied
the defendant's double jeopardy claim, the Supreme Court grant certiorari. Id. Upon
review, the Court vacated the judgment and remanded the case, id. at 798, specifically
holding that fifth amendment double jeopardy protections apply to states through the
fourteenth amendment. Id. at 794 (overruling Palko v. Connecticut, 395 U.S. 784 (1969)).
26. In Green v. United States, 355 U.S. 184 (1957), a state jury found a defendant
guilty of second degree murder since a woman had burned to death when he maliciously
set fire to her house. Id. at 186. The court of appeals reversed the conviction for insufficient evidence and remanded the case for a new trial. Id. On remand the defendant was
tried again under the original indictment, was convicted of first degree murder and sentenced to death. Id.
The court of appeals rejected the defendant's former jeopardy argument and affirmed the conviction. Id. The Supreme Court reversed, recognizing "the deeply entrenched principle of our criminal law that once a person has been acquitted of an ofSTATEMENT
19861
RES JUDICATA
the
ever, when judges choose to emphasize different subparts of
27
larger policy, for whatever reasons they deem appropriate.
D. Same Offense/Same Claim Inquiries
A criminal defendant seeking to invoke the defense of
double jeopardy 28 must make a threshold showing that former
jeopardy has attached.2 9 If it is found that jeopardy attached in
a prior proceeding, a court must then decide whether the prior
and present charges are the "same offense."30 To resolve this key
problem the majority of American courts use the "same evifense he cannot be prosecuted again on the same charge." Id. at 192. The Court refused
to tolerate repeated attempts by the resource-rich government to convict a person for an
alleged offense, "subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found guilty." Id. at 187-88. See State v.
Wilson, 180 Conn. 481, 487, 429 A.2d 931, 934 (1980) (would violate fundamental principles of collateral estoppel for court to re-examine identical fact situation to redetermine
matter of law that had already been adjudicated); see also Oppenheimer, 242 U.S. 85
(major early authority for policies underlying criminal res judicata); United States ex rel.
DiGiangiemo v. Regan, 528 F.2d 1262, 1266 (2d Cir. 1975) (court noted disparity in resources between state and defendant, strain of second prosecution even when not for
identical offense as first prosecution), cert. denied, 426 U.S. 950 (1976). See generally
Westen, supra note 14, at 1034 (discusses interest in finality); Currie, supra note 22, at
325 (foundation of res judicata policy); Polasky, CollateralEstoppel - Effects of Prior
Litigation, 39 IowA L. R.v.217, 219 (1953) (general interest in certainty).
27. The present state of confusion is partially due to the judicial practice of balancing policies according to the facts of particular cases; too often certain policies favoring one side are emphasized or minimized to facilitate achieving desired outcomes. See
Westen, supra note 14, at 1036-37 (American double jeopardy law is a product of such
balancing). But see Burks v. United States, 437 U.S. 1, 11 n.6 (1977) (there are no equities to be balanced; the double jeopardy clause has declared a constitutional policy based
on grounds outside the scope of judicial examination). Compare Breed v. Jones, 421 U.S.
519, 533 (1975) (exceptions to rule only grudgingly allowed, must be justified by unusually compelling interests of society to render resulting costs and burdens tolerable) with
United States v. Tateo, 377 U.S. 463, 466 (1964) (society has interest in successful prosecutions that may outweigh individual defendant's constitutional rights). But see Commonwealth v. Lagana, 334 Pa. Super. 100, 101, 482 A.2d 1101, 1103 (Pa. Super. 1984)
(example of judicial muddling of terms; concern over lack of attachment of jeopardy in
discussion of collateral estoppel).
28. For a general overview of situations in which the doctrine is applicable see Vestal & Gilbert, Preclusion of Duplicative Prosecutions - A Developing Mosaic, 47 Mo. L.
Ray. 1 (1982); Westen, supra note 14, and Fisher, Double Jeopardy - 6 Common Boners,
15 U.C.L.A. L. REV. 81 (1967).
29. See Serfass v. United States, 420 U.S. 377, 388 (1975) (jeopardy attaches when
jury empanelled and sworn or when judge begins hearing evidence).
30. See generally Note, supra note 12, at 80 (introduction to "same offense"
controversy).
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dence" test, which allows multiple prosecutions for a single activity only if each of the invoked statutes requires proof of at
least one material fact which the other does not.3 ' A minority of
jurisdictions have adopted the "same transaction" test, endorsed
by Justice Brennan, which would require prosecutors to charge a
defendant with all offenses growing from a single criminal transaction; the prosecution would waive all offenses not then
joined.3 2 Res judicata, unlike double jeopardy, does not require
identity of offenses. The threshold question under res judicata
analysis is whether a prior proceeding rendered a judgment on
the merits of the same claim as that in the instant case.33
E.
Statute of Limitations Acquittals and Connecticut Law
An acquittal by the expiration of a statute of limitations has
31. See, e.g., Morey v. Commonwealth, 108 Mass. 433 (1871), where a conviction
for lewd and lascivious cohabitation did not bar defendant's subsequent conviction for
adultery since each statute required proof of a fact which the other did not. Id. at 43536. See also Illinois v. Vitale, 447 U.S. 410, 421 (1980) (second prosecution may not be
brought if proof of lesser included offense charged in first action is necessary to prove
greater offense charged in second action); Harris v. Washington, 404 U.S. 55, 56-57
(1971) (prosecution precluded from second indictment regardless of whether trier of fact
considered all evidence relevant to issue); Blockburger v. United States, 284 U.S. 299
(1932) (following Morey); Flittie v. Solem, 751 F.2d 967, 970 (8th Cir. 1985) (test focuses
on the statutory elements of offenses rather than evidence presented at trial).
32. See, e.g., Ashe v. Swenson, 397 U.S. 436, 453-55 (1970) (Brennan, J., concurring). See also Brown v. Ohio, 432 U.S. 161, 170 (1977) (Brennan, J., concurring). In
Brown the Court held that joyriding and auto theft are the same offense for double jeopardy purposes, and refused to allow the prosecution to divide the crime into separate
spatial or temporal units. Id. at 169. Justice Brennan emphasized that the State failed to
join in one proceeding all charges against the defendant that grew from the one criminal
transaction. Id. at 170 (Brennan, J., concurring). But see State v. Bessey, 328 A.2d 807,
815 (Me. 1974) (expressly rejected same transaction test). See generally Lugar, supra
note 14, at 320 n.13 for a review of the "same evidence" and "same transaction" tests.
33. One of the earliest cases to announce this principle was Cromwell v. County of
Sac, 94 U.S. 351, 352 (1876). See also Oppenheimer, 242 U.S. at 87 (citing Cromwell);
Aillon, 189 Conn. at 423, 456 A.2d at 283 (same). Although the court in Aillon recognized
the strength of the doctrine of res judicata, it created within itself the discretion to make
"same claim" determinations according to the facts of given cases, id. at 425, by pulling
language from Sealfon v. United States, 332 U.S. 575 (1948). In Sealfon, a defendant was
tried and acquitted of the charge of conspiracy to defraud. Id. at 577. He was later convicted for aiding and abetting the fraud itself. Id. at 578. The Supreme Court reversed
that conviction. Id. at 580. The Court considered jury instructions given in the first trial,
stating "[t]he instructions under which the verdict was rendered ... must be set in a
practical frame and viewed with an eye to all the circumstances or the proceedings." Id.
at 579. The Aillon court thus excised language from a holding concerning issue preclusion and imposed it upon the larger doctrine of claim preclusion.
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RES JUDICATA
long been recognized as a judgment on the merits, entitling the
accused to protection against subsequent prosecution for the
same claim. " A successful criminal defense of the statute of limitations bars, by res judicata, reprosecution of the entire criminal claim; it does not merely bar reindictment for the same statutory offense or relitigation of narrower issues previously
litigated.3 5 American decisions dealing with the statute of limitations defense consistently and specifically refuse to narrow its
res judicata impact. 6 When a statute of limitations is revised,
however, its very application may become unclear. Until 1976,
the Connecticut General statutes imposed a blanket five-year
limitation upon prosecution of crimes punishable by imprisonment in the state prison, and a one-year limitation upon prosecution of all other crimes except those punishable by death or
imprisonment.3 7 In 1976, the legislature substantially changed
34. The seminal case in support of this principle is United States v. Oppenheimer,
242 U.S. 85, 87 (1916), where Justice Holmes insisted that an acquittal on a statute of
limitations is as much a protection against a second trial as a judgment of not guilty, and
that such an acquittal goes to the defendant's liability as a matter of substantive law.
See also Commonwealth v. Henkel, 487 A.2d 1010, 1014 (Pa. Super. Ct. 1985) (firm emphasis on Oppenheimer principle); Washington v. United States, 366 A.2d 457, 460 (D.C.
1976) (relying on Barber, 219 U.S. 72 (1910)); United States v. Jackson, 374 F. Supp.
168, 178 (N.D. Ill. 1974) (defendant may not be reprosecuted for same criminal claim
once statute of limitations has run), modified, 508 F.2d 1001 (1975); United States v.
Brodson, 234 F.2d 97, 99 (7th Cir. 1956) (statute of limitations is plea in bar, and when
successfully invoked will absolutely destroy right of action); United States v. Barber, 219
U.S. 72, 78 (1910) (plea of statute of limitations is directed to merits of case, former
acquittal effective as to entire charge and not merely abatement of action).
35. See supra note 34 and accompanying text for a discussion of the res judicata
impact of a successful statute of limitations defense.
36. A criminal statute of limitations draws a sensitive line between the public's
interest in justice and the individual's right to be free of the threat of prosecution for his
misconduct. As noted by the court in State v. Ellis, "[the] passage of time may prevent
recollection of facts necessary to convict, or hinder the presentation of a proper defense."
197 Conn. at 458 n.18, 497 A.2d at 986 n.18. The primary objective of such a statute is to
promote efficient and effective law enforcement. Id. at 458 n.18, 497 A.2d at 986 n.18.
37. CONN. GEN. STAT. § 54-193 (1976) (limitation of prosecutions for various offenses). Before its amendment in 1976 the statute in pertinent part read as follows:
No person shall be prosecuted ... for any crime ... of which the punishment is
or may be imprisonment in the [State Prison], except within five years next
after the offense has been committed; nor shall any person be prosecuted for
the violation of any penal law, or for other crime.., except crimes punishable
by death or imprisonment ... but within one year next after the offense has
been committed.
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the statute of limitations for felony crimes"' to remove any time
limit within which to prosecute capital or class A felonies.3 9
However, two years earlier, in the spring of 1974, the following
events had begun to unfold which in 1985 challenged the Connecticut Supreme Court to apply both the old and new statutes
of limitations together with Constitutional double jeopardy and
40
res judicata considerations in State v. Ellis.
III.
A.
THE DECISION
Facts
Joseph Cunningham, Jr., age seventeen, was stabbed to
death on or about May 14, 1974.4' Two weeks later on May 31
his badly decomposed body was discovered in a heavily wooded
section of Enfield, Connecticut. 42 Over four years later, on July
11, 1978, the chief medical examiner classified the victim's death
as a homicide resulting from multiple stab wounds.43 A warrant
was issued for the arrest of Brian Ellis in connection with the
death, and he was arrested on December 1, 1981." The next day
Wilmer Paradise was arrested as a co-accused.45 Both were
charged by information with murder," felony murder,4 7 and kidnapping in the first degree, 4 8 all of which were and are class A
felonies." The state moved to call a grand jury, 0 but before the
38. 1976 Conn. Acts 76-35 (Reg. Sess.) amended the statute to provide in pertinent
part: "No person may be prosecuted for any other offense, except a capital felony or a
class A felony, except within one year next after the offense has been committed." That
Public Act is now codified in CONN. GEN. STAT. § 54-193(b)(1980).
39. CONN. GEN. STAT. § 53a-54a(c)(1980) defines murder as a class A felony; § 53a-
54c (1979) defines felony murder; § 53a-92(b) (1975) defines kidnapping in the first degree as a class A felony; and § 53a-54b (1985) defines capital felony in terms of various
lesser included class A felonies accompanied by certain aggravating factors.
40. 197 Conn. 436, 497 A.2d 974 (1985).
41. State v. Paradise, 189 Conn. 346, 347, 456 A.2d 305, 306 (1983).
42. Id. at 347, 456 A.2d at 306.
43. Id. at 347, 456 A.2d at 306.
44. Id. at 347, 456 A.2d at 306.
45. Id. at 347, 456 A.2d at 306.
46.
CONN. GEN. STAT. §53a-54a (1980) (murder defined).
47.
48.
49.
CONN. GEN. STAT. §53a-54c (1979) (felony murder defined).
CONN. GEN. STAT. §53a-92(a)(2) (1973) (kidnapping first degree defined).
CONN. GEN. STAT. §53a-25(b)(1)(1973) (classification of felonies). See also CONN.
GEN. STAT. §53a-35(b)(1)(1973) (life imprisonment for class A felony unless death penalty
imposed); CONN. GEN. STAT. §53a-46a (1985) (hearing on imposition of death penalty).
50. Paradise,189 Conn. at 347, 456 A.2d at 306.
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RES JUDICATA
trial court ruled upon the motion the defendants filed motions
to dismiss the pending charges51 pursuant to the Connecticut
Rules of Court.52 The defendants contended that the prosecution was barred by the expiration of the statute of limitations in
effect when the crimes took place. 3 On March 29, 1982, the
court granted the defendants' motions and dismissed the prosecutions 4 with prejudice." With leave of the court the state appealed and the Connecticut Supreme Court in State v. Paradise
(Paradise I) found no error. 56
Barely two weeks later, on April 11, 1983, the state rearrested Paradise and Ellis' 7 and charged them with capital fel-
ony."s A third defendant, David Worthington, was arrested as
51. Id. at 347, 456 A.2d at 306.
52. CONN. R. COURT 815(3).
53. Ellis, 197 Conn. at 438-39, 497 A.2d at 976; Paradise,189 Conn. at 347-48, 456
A.2d at 306.
54. Ellis, 197 Conn. at 439, 497 A.2d at 976; Paradise,189 Conn. at 348, 456 A.2d
at 306.
55. See Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456 (1944), in which the
Missouri Supreme Court considered the import of the term "with prejudice." That court
held that a dismissal with prejudice "is as conclusive of the rights of the parties as if the
suit had been prosecuted to a final adjudication adverse to the plaintiff." Id. at 204, 176
S.W.2d at 460. See also BLACK'S LAW DICTIONARY 421 (5th ed. 1979), which defines a
dismissal with prejudice as "[an adjudication on the merits, and final disposition, barring the right to bring or maintain an action on the same claim or cause." Id. A dismissal
"without prejudice" is intended to allow a subsequent suit on the same cause of action,
indicating that the judicial act is not to be res judicata of the merits of the claim. Id.
CONN. R. COURT 819 provides that a judge in granting a pretrial motion to dismiss must
specify whether the dismissal is with or without prejudice. Dismissals with prejudice
have the same effect as final judgments in barring further prosecution for the same offense or offenses.
56. Ellis, 197 Conn. at 439, 497 A.2d at 976; Paradise,189 Conn. at 353, 456 A.2d
at 309. In Paradise the state sought to apply the post-1976 revision of CONN. GEN. STAT.
§ 54-193 retroactively to avoid the effects of the statute in force when the homicide occurred. Ellis, 197 Conn. at 461, 497 A.2d at 987; Paradise,189 Conn. at 347, 456 A.2d at
306. However, both the trial court and the Supreme Court found that the new statute
effected a change of substantive law and, since it contained no language providing for
such an application, the prosecution's contention was rejected. Id. at 347, 456 A.2d at
306.The nickname "ParadiseI" may be confusing since there is no later case dubbed
"ParadiseII." The Ellis court simply used the expression when referring to the litigation
that produced the statute of limitations dismissal of the murder, felony murder and
kipnapping charges.
57. Ellis, 197 Conn. at 439, 497 A.2d at 976.
58. CONN. GEN. STAT. § 53a-54b(5)(1985) provides in pertinent part: "[a] person is
guilty of a capital felony who is convicted of any of the following . .. (5) murder by a
kidnapper of a kidnapped person during the course of the kidnapping or before such
person is able to return or be returned to safety .... " Id.
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well and charged in connection with the same offense. 9 All three
men filed motions to dismiss, but this time the hearing on the
motions was postponed pending the action of the grand jury."
The grand jury on June 2, 1983 returned separate indictments
charging each of the men as principal and accessory61 to the
crime of capital felony. 2 A hearing on the motions to dismiss
was then conducted where Paradise and Ellis argued that their
reprosecution was barred under principles of res judicata.63 The
trial court agreed and dismissed the indictments." The state
again, with leave of the court, appealed the dismissals." The
case was argued before the Connecticut Supreme Court on April
11, 1985.66
B.
The Opinion
1. Majority
In a four to one decision, the Connecticut Supreme Court
set aside the trial court's dismissal of the capital felony charges
against Paradise and Ellis and remanded the case for further
proceedings.6 Justice Dannehy, writing for the majority, first
analyzed whether the pre-1976 statute of limitations was intended by the legislature to apply to capital prosecutions.6 8 The
court concluded that it was not intended to so apply since the
1976 revision of the statute only served to clarify the then-existing law.69 With this foundation laid, the court then addressed
59. Ellis, 197 Conn. at 439, 497 A.2d at 976. This comment focuses on the double
jeopardy and res judicata ramifications of the fate of Paradise and Ellis, and that of
Worthington will not be discussed at length.
60. Id. at 439, 497 A.2d at 976.
61. See CONN. GEN. STAT. § 53a-8(1971) (accomplice liability).
62. Ellis, 197 Conn. at 439, 497 A.2d at 976. See also CONN. GEN. STAT. § 53a54(b)(1985) (capital felony).
63. Ellis, 197 Conn. at 439, 497 A.2d at 976.
64. Id. at 439, 497 A.2d at 976.
65. Id. at 439, 497 A.2d at 976.
66. Id. at 437, 497 A.2d at 974.
67. Id. at 437, 497 A.2d at 974. Justice Dannehy was joined by Justices Healey,
Santaniello and Callahan. Chief Justice Peters dissented in part.
68. Id. at 440, 497 A.2d at 977. The defendants relied heavily upon the second
clause of pre-1976 § 54-193, contending that a plain reading of the language imposed the
five year limitation on crimes punishable by death as well as those punishable by imprisonment. Ellis, 197 Conn. at 442, 497 A.2d at 978. For pertinent language from the statute
see supra, note 37.
69. Ellis, 197 Conn. at 460, 497 A.2d at 987. For the Ellis majority's protracted
19861
RES JUDICATA
the res judicata effect of the statute of limitations dismissal in
ParadiseI. It concluded that the trial court improperly applied
the doctrine. 7
The Supreme Court condemned the trial court's use of
claim preclusion for its broad definition of "same claim. 7 2 The
majority declared that ParadiseI barred the state only from relitigating the issue of whether the newer statute of limitations
would apply retroactively against these defendants.73 In so doing, the court recognized that the trial court in Paradise I had
dismissed the charges on the merits.7 4 However, the Ellis court
identified two major factors in deciding that a narrow definition
of "same claim" was justified. First, it emphasized the need to
view the procedural posture of a case to determine whether a
party had fully and fairly litigated his claims.75 If a party had
pursued his entire cause of action to full adjudication, he would
be barred from subsequently relitigating that claim as well as all
other admissible matters which he might have raised; if the
claim had not achieved full adjudication, the party would not be
so estopped.7 6 Second, the court determined that a pretrial dismissal based on the statute of limitations did not satisfy the
"fully and fairly litigated" requirement. 7
Having reduced the effect of the prior proceedings to issue
preclusion, the majority criticized the trial court's use of double
jeopardy reasoning in its "same claim/offense" analysis. 8 Since
statutory analysis see id. at 440-60, 497 A.2d at 977-87. But see Paradise,189 Conn. at
351, 456 A.2d at 308 (court found new statute substantially changed existing law); see
also Wallace v. Jaffree, 105 S. Ct. 2479, 2492 n.48 (1985) (Justice Stevens noted "common sense presumption that statutes are usually enacted to change existing law").
70. Ellis, 197 Conn. at 460, 497 A.2d at 987.
71. Id. at 462, 497 A.2d at 988.
72. Id. at 466, 497 A.2d at 990. This is apparent from the majority's discourse on
the need to maintain flexibility in defining the term in given cases. See id. at 464, 497
A.2d at 989 for that discussion. The court has consistently shown a willingness to narrow
or widen the definition of "same claim" on an ad hoc basis, as in Aillon, 189 Conn. 416,
456 A.2d 279. See also supra note 33 and accompanying text for a discussion of "same
claim" manipulation in Aillon.
73. Ellis, 197 Conn. at 463, 497 A.2d at 998.
74. Id. at 469, 497 A.2d at 991.
75. Id. at 467, 497 A.2d at 990.
76. Id. at 468, 497 A.2d at 991.
77. Id. at 469, 497 A.2d at 991. See infra note 101 for a discussion of the "fully and
fairly litigated" test; it apparently is the Ellis court's original creation.
78. Id. at 471-72, 497 A.2d at 992. See supra notes 30-32 and accompanying text
for a discussion of "same claim/same offense" inquiries.
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the court had deemed that res judicata in this case could only
have the effect of issue preclusion, 9 and since double jeopardy
was not involved, 80 there was no need to undertake an identity
of offenses analysis. 81 The court deemed murder and capital felony to be distinct statutory offenses."' Rejecting the significance
of the fact that murder is a lesser included offense of capital
felony,"3 the court framed the essential issue as whether the
prosecution was required to join in the single criminal prosecution all discrete statutory offenses that grew from the one criminal transaction.84 Emphasizing that the state's attorney tradi79. Id. at 471-72, 497 A.2d at 992.
80. Id. at 471-73, 497 A.2d at 992-93. The issue of double jeopardy was apparently
abandoned by the defense at an early stage since no jury had been empanelled, no evidence had been heard by the judge, and thus former jeopardy had never attached.
Serfass v. United States, 420 U.S. 377, 389 (1975). The court thus operated under the
assumption that the constitutional protection was not at issue. See Ellis, 197 Conn. at
478, 497 A.2d at 996. This comment will limit its consideration of the doctrine to the
extent it was contrasted with res judicata in Ellis.
81. Ellis, 197 Conn. at 472-73, 497 A.2d at 993. The court maintained that the
different underlying policies of res judicata and double jeopardy required constricted or
dilated definitions of "same claim" and "same offense", respectively. Id. at 472-73, 497
A.2d at 993. The policies behind res judicata were stated as: (1) the state's interest in
judicial economy; (2) the judiciary's interest in preserving integrity by consistent judgments; and (3) the accused's interest in repose from repetitious litigation. Id. at 466, 497
A.2d at 990. The policy behind double jeopardy was summarized in terms of its protections against cumulative punishment and successive prosecutions following the attachment of former jeopardy. Id. at 472, 497 A.2d at 993.
Since ParadiseI was decided by pretrial motion, no violation of judicial economy
was recognized. Ellis, 197 Conn. at 475-76, 497 A.2d at 994-95. Since the court had decided that the statute of limitations distinguished between the offenses according to
their severity, there could be no problem with inconsistent judgments. Id. at 476, 497
A.2d at 995. Finally, the inconvenience attending a grand jury probable cause proceeding
imposed too slight a burden on the defendants to warrant application of res judicata
finality principles. Id. at 477, 497 A.2d at 995.
82. Ellis, 197 Conn. at 473, 497 A.2d at 993. In support the court reasoned that
murder and capital felony do not contain the same statutory elements, and each is different for purposes of providing notice in the bill of particulars. Id. at 473, 497 A.2d at 993.
Moreover, the court reasoned that each carries different rights to pretrial ball, each carries a different punishment, and, under the law created by this case, each is not subject
to the same statute of limitations. Id. at 473, 497 A.2d at 993. The court did not elaborate on whether the offenses would have been found distinct if double jeopardy had been
involved.
83. Id. at 473, 497 A.2d at 993. See infra note 105 for several cases holding the
opposite. Consider CONN. R. COURT 624, which requires a "same offense" analysis when
the prosecution wishes to amend an information or indictment. To allow such an amendment a judge must determine that no additional or different offense is charged, and that
no substantive rights of a defendant would be adversely affected. Id.
84. Ellis, 197 Conn. at 474, 497 A.2d at 994. See also id. at 480, 497 A.2d at 997
1986]
RES JUDICATA
tionally has had wide discretion in charging decisions, the court
summarily refused to impose compulsory joinder principles. It
reversed the dismissals and remanded the case for further
proceedings."
2. Chief Justice Peters' Dissent
Before rejecting the majority's analysis, the Chief Justice
emphasized several of the majority's points with which she
agreed. First, Justice Peters agreed that the capital felony
charges against Paradise and Ellis grew from the same incident
and involved the same victim as the charges leveled in Paradise
I. Second, she recognized that res judicata acts to bar the reprosecution of charges previously dismissed on the merits. Third,
the judgment in ParadiseI was a dismissal on the merits. And
fourth, that for double jeopardy purposes the charge of capital
felony is the same offense as the charge of murder.8 6
She restated the issue of the case as "whether, after a criminal prosecution has been dismissed on the merits, a defendant
may be reprosecuted on a new charge that is the same offense as
that for which he was earlier unsuccessfully prosecuted. 87 Chief
Justice Peters rejected the majority's assertion that the scope of
the term "same offense" must expand or contract according to
the type of dismissal involved.88 She insisted that the nature of
the dismissal on the merits is immaterial; she noted the Connecticut Supreme Court's own language from Aillon, that "a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim." 89
Finding no significant difference between the new and the
old charges, Chief Justice Peters maintained that both rested
upon the common claim that Paradise and Ellis kidnapped Jay
Cunningham and intentionally killed him during the kidnap(Peters, C.J., dissenting in part) where Chief Justice Peters noted that neither the trial
court nor the defendants advanced a mandatory joinder of criminal charges theory.
85. Id. at 478, 497 A.2d at 996.
86. Id. at 479, 497 A.2d at 996 (Peters, C.J., dissenting in part).
87. Id. at 480, 497 A.2d at 997.
88. Id. at 480, 497 A.2d at 997. Chief Justice Peters warned that such reasoning
would wrongly reduce Oppenheimer to a holding bearing on issue preclusion. Id. at 480,
497 A.2d at 997. Oppenheimer, 242 U.S. 85, is discussed at supra note 34.
89. Ellis 197 Conn. at 481, 497 A.2d at 997 (Peters, C.J., dissenting in part). See
Aillon, 189 Conn. at 423, 456 A.2d at 283 for that quoted material.
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ping. 90 She rejected the majority's attempt to transform one offense into a new one by enriching the punishment. 91 Chief Justice Peters believed that serious constitutional principles of
fundamental fairness were violated by allowing a reprosecution
on such a distinction, and criticized the majority's implied assertion that the state had a constitutional interest in successful
prosecutions that could outweigh a defendant's interest in the
finality of a dismissal on the merits.93 She highlighted the incongruity of the majority's reasoning that, if the defendants had
waited to raise their statute of limitations defense until after a
jury had been empanelled, their reprosecution would have been
barred; since the defense was raised before that time their reprosecution was permissible. 3 She pointed out that punishing
criminal defendants for raising valid defenses is a violation of
due process.9 4 She concluded by emphasizing that the principle
of finality rests equally within double jeopardy and res judicata,
and issued a reminder that "the only enduring guarantee of a
just legal system is to afford fundamental rights and due process
even to those accused of having committed horrendous crimes
such as murder.
90. Ellis, 197 Conn. at 481, 497 A.2d at 997 (Peters, C.J., dissenting in part).
91. Id. at 481, 497 A.2d at 997. For authority supporting this assertion, see State v.
Sinclair, 184 Conn. 215, 216, 439 A.2d 945, 946 (1981) and State v. Perkins, 169 Conn.
263, 264-65, 363 A.2d 141, 142 (1975), both of which hold that a persistent dangerous
felony offender charge is not a separate crime from the principal charge.
92. Ellis, 197 Conn. at 483, 497 A.2d at 998 (Peters, C.J., dissenting in part).
93. Id. at 483, 497 A.2d at 998.
94. Id. at 483, 497 A.2d at 998. An analogous case supporting this principle is
Blackledge v. Perry, 417 U.S. 21 (1974). Perry, while an inmate in a North Carolina
prison, had gotten into a fight with another prisoner. Id. at 22. Perry was convicted of
misdemeanor assault with a deadly weapon. Id. Perry appealed, but before his new trial
began the prosecutor brought a felony charge of assault with a deadly weapon with intent to kill and inflict serious bodily injury. Id. at 23. This indictment was for the same
conduct which produced the misdemeanor conviction. Id.
The Court found that Perry had been forced by the prosecution to raise the stakes
in order to pursue his appeal, and that this was constitutionally impermissible. Id. at 28.
Even with no evidence of prosecutorial bad faith the Court ruled for Perry. Id. The
Court stated that "[a] person convicted of an offense is entitled to pursue his statutory
right to a trial de novo, without apprehension that the State will retaliate by
substituting a more serious charge for the original one, thus subjecting him to a significantly increased period of incarceration." Id. at 28.
95. Ellis, 197 Conn. at 484, 497 A.2d at 998 (Peters, C.J., dissenting in part).
19861
RES JUDICATA
III. ANALYSIS
Ellis is an unfortunate decision; the latest in a recent series
in which the Connecticut Supreme Court's only claim to consistency rests in applying the doctrine of res judicata against litigants opposing the state." The majority imposed an unprecedented exception upon the pre-1976 statute of limitations and,
given its lengthy justification, was uncomfortable in doing so."'
This measure was necessary, however, to give the court a foothold from which it then stripped res judicata down to more
manageable dimensions.
The court's first step towards this end was to assign itself
virtually unrestricted discretion in adjusting the scope of the
term "same claim/offense.""e Building on the legacy of Aillon,"
the court summarily stripped res judicata of its potency as claim
preclusion, relegating it to the equivalent of narrower issue preclusion.100 To achieve this result the court employed its own
96. These cases are: State v. Aillon, 189 Conn. 416, 456 A.2d 279 (1983); State v.
Wilson, 180 Conn. 481, 429 A.2d 931 (1980); and In re Juvenile Appeal, 190 Conn. 310,
460 A.2d 1277 (1983). Ironically, the Aillon court, in denying the defendant a reargument
of his double jeopardy defense against murder charges, reasoned that the present claim
relied on precisely the same facts, merely to be supplemented by new evidence purporting to show the judge's bad faith. Aillon, 189 Conn. at 426, 456 A.2d at 284. The court in
that case held that the "slight shift in evidentiary basis and substantive theory of law
does not constitute a new claim." Id. at 426, 456 A.2d at 284.
State v. Wilson involved a defendant who had been convicted of assault in the first
degree and conspiracy to commit burglary in the first degree. 180 Conn. at 481, 429 A.2d
at 932. In denying his efforts on appeal to challenge the validity of his arrest and search,
the court found that basic principles of collateral estoppel would be violated if the court
reexamined "the identical factual situation to redetermine a matter of law that [had]
already once been fully litigated by the same parties and finally decided." Id. at 487, 429
A.2d at 934. In re Juvenile Appeal, a civil case, further demonstrates this pro-state
trend. For a further discussion of that case, see infra note 101.
97. See supra, note 69 and accompanying text for comments on the majority's statutory analysis.
98. Ellis, 197 Conn. at 472, 497 A.2d at 993. For a discussion of the Ellis court's
"same offense" analysis see supra note 82.
99. Aillon, 189 Conn. at 423, 456 A.2d at 283. The Court in Sealfon, 332 U.S. at
579, had specifically considered jury instructions from a previous trial, and the collateral
estoppel implications thereof, on the way to deciding the broader res judicata effect of
the jury's acquittal of conspiracy charges. On that specific matter the Court stated "[the
instructions under which the verdict was rendered ... must be set in a practical frame
and viewed with an eye to all the circumstances of the proceedings." Id. The Aillon court
worked that language into a broad maxim governing judicial "same claim" analysis; see
supra note 33 and accompanying text for a discussion of that transposition.
100. See supra notes 77-82 and accompanying text for a discussion of the Ellis
court's technique to this end.
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"fully and fairly litigated" analysis, 10 1 from which the court concluded that "a pretrial dismissal, based on the statute of limitations, is not the logical or practical equivalent of a full and fair
10 2
opportunity to litigate.
The United States Supreme Court has consistently and ve-
hemently held that dismissals on the statute of limitations are a
complete protection against reprosecutions for res judicata pur-
poses. 10 8 The Ellis court's disregard for this principle was a blatant violation of precedent. Many cases have made clear that a
prosecution for a lesser included offense bars a subsequent prosecution for that greater offense. 0 4 This supports Chief Justice
101. See supra text accompanying notes 76 and 77 for a description of that test.
This analysis is apparently the court's original creation. The court traced the principle
through a sequence of its prior holdings, beginning with State v. Wilson, 180 Conn. 481,
429 A.2d 931 (1980). There, in holding that the issue of the admissibility of bloodhound
tracking evidence was blocked from reargument by collateral estoppel, the court characterized the question as "a matter of law that has already once been fully litigated by the
same parties ....
Id. at 487, 429 A.2d at 934. The Ellis court next discussed Aillon, in
which protracted litigation had resulted in two mistrials and one determination of judicial misconduct. Id. at 418, 456 A.2d at 280. The quantity of litigation that had occurred
compelled the court to disallow reargument of the misconduct issue to support the defendant's double jeopardy claim. Id. at 428-29, 456 A.2d at 285.
The final case addressed by the Ellis court was In re Juvenile Appeal, 190 Conn.
310, 460 A.2d 1277 (1983), a civil suit brought by the commissioner of children and youth
services to terminate the parental rights of a mother to her son. Ellis, 197 Conn. at 468,
497 A.2d at 991. In Juvenile the action was dismissed for the plaintiff's failure to bring
certain evidence as a statutory precondition of suit, but upon collecting proof that compliance with the precondition was unnecessary the plaintiff brought a second action and
terminated the mother's rights. Juvenile, 190 Conn. at 313, 460 A.2d at 1279-80. The
court allowed the second suit, deeming that the prior dismissal had not borne upon the
merits of that ancillary issue. Id. at 316, 460 A.2d at 1286. The phrase "fully and fairly
litigated" is often employed in other contexts. See, e.g., Connolly v. Connolly, 191 Conn.
468, 464 A.2d 837 (1983) (husband in divorce action failed to prove that issue of alimony
termination was fully and fairly litigated). Never before, however, has it been incorporated into a mechanical threshold test in factual settings such as in Ellis.
102. Ellis, 197 Conn. at 469, 497 A.2d at 991. The court distinguished Oppenheimer as involving only charges actually litigated, not discrete ancillary offenses such as
the Ellis court's description of capital felony. Id. at 469 n.24, 497 A.2d at 991 n.24.
103. See supra note 34 and accompanying text for a discussion of Supreme Court
and federal court cases behind this principle.
104. This proposition finds early support in Cromwell v. County of Sac, 94 U.S.
351, 351-53 (1876) (a judgment estops every ground which might have been prosecuted).
Some recent cases are: Ball v. United States, 105 S. Ct. 1668, 1672 (1985) (proof of
greater offense necessarily includes proof of lesser included offense, precluding prosecution for lesser); Illinois v. Vitale, 447 U.S. 410, 421 (1980) (second prosecution may not
be brought if proof of lesser included offense charged in first prosecution necessary to
prove greater in second); Brown v. Ohio, 432 U.S. 161, 168 (1977) (prosecution for lesser
offense precludes later prosecution for greater); State v. Clemmons, 207 N.C. 276, 277,
19861
RES JUDICATA
Peter's assertion that murder and capital felony "are as much
the same charges for the purpose of res judicata as they are for
the purposes of double jeopardy."' 0 5
The majority in Ellis sidestepped these mandates, opting
instead to characterize the trial court's application of claim preclusion as an attempt to develop a compulsory joinder of offenses doctrine,1 0 6 and pointedly rejected the validity of such a
principle.10 7 The majority opinion itself reveals the court's underlying view of the prosecutor-accused relationship that motivated such measures. At one point, the majority criticized the
trial court's reasoning for making the doctrine of res judicata depend on the initial charging decision rather than on the actual
litigation occurring in the prior proceeding.0' It later rationalized that "for whatever reason, the state's attorney did not believe that capital felony was the appropriate crime with which to
initially charge these defendants.' 0 9 The Supreme Court, in addressing situations where guilty defendants are allowed to go
free for abortive first prosecutions, has unequivocally told states
"too bad." Justice Stewart in Ashe said:
No doubt the prosecutor felt that the state had a provable case on the
first charge and, when he lost, he did what every good attorney would
do - he refined his presentation in light of the turn of events at the
first trial . . . this is precisely what the constitutional guarantee
forbids. 110
176 S.E. 760 (1934) (acquittal for lesser crime bars prosecution for greater committed at
same time). For related holdings see supra, note 91. See generally Vestal & Gilbert,
supra note 28, at 10-11 (discussing "lesser included offense" problem in context of res
judicata and double jeopardy); Note, supra note 12, at 89.
105. Ellis, 197 Conn. at 479-80, 497 A.2d at 996 (Peters, C.J., dissenting in part).
106. Id. at 474, 497 A.2d at 994.
107. Id. at 475, 497 A.2d at 994. Observe that neither the defense nor the trial
court relied on any such theory. See also id. at 480, 497 A.2d at 997 (Peters, C.J., dissenting in part) (rejecting majority's statement of joinder issue).
108. Ellis, 197 Conn. at 473 n.26, 497 A.2d at 993 n.26.
109. Id. at 478, 497 A.2d at 996.
110. Ashe, 397 U.S. at 447. Such use of a first trial as a dry run for a second was
again condemned in Burks v. United States, 437 U.S. 1, 11 (1977). In Burks the Court
held that the double jeopardy clause forbids the prosecution from using a second trial to
bring evidence it failed to muster in the first proceeding. The American common law
recognized the virtue of this position at an early date, as seen in State v. Cooper, 13
N.J.L. 361 (1833). That court declared, when the state had decided to prosecute a milder
form of a crime, "it is better that the residue of the offence go unpunished, than by
sustaining a second indictment to sanction a practice which might be rendered an instru-
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IV. IMPACT
The effects of Ellis will be manifested in three areas. First,
courts may now use the decision as authority to wield almost
unlimited discretion to permit or reject criminal pleas of res
judicata."1 Particularly seductive will be the Ellis court's notion
that the state's interest in effective prosecutions will, in certain
circumstances, outweigh a defendant's constitutional rights. " 2
Throughout the majority's opinion it consistently belittled the
weight vouchsafed to criminal defendants in the policy balancing
process. " 3
Second, prosecutors may now breathe easier when their burdensome workloads tempt them to be less diligent in ascertaining the propriety of criminal charges, or in building actions
against the truly guilty. If a first trial is unsuccessful and jeopardy has not attached, prosecutors can use Ellis as authority allowing a second bite at the apple.1" They may actually now be
ment of oppression to the citizen." Id. at 376. English law has long supported this principle. In Regina v. Miles, 24 Q.B.D. 423, 434 (1820) the court exhorted "[i]n matters before
[the court] upon which they are called upon to adjudicate they must do so .... (emphasis in original). Specifically, the Supreme Court has invoked this rule to limit
prosecutorial discretion in seeking new indictments when such actions enable prosecutors to retaliate for a defendant's assertion of statutory and due process rights.
111. See Ellis, 197 Conn. at 464-65, 497 A.2d at 989. The new "fully and fairly
litigated" test will be a useful tool to this end, as it now carries strength enough to
override long standing principles such as the statute of limitations finality axiom. Id. at
464-65, 497 A.2d at 989. See supra note 34 and accompanying text for a discussion of
that axiom. See also supra 101 and accompanying text for a discussion of the "fully and
fairly litigated" test.
112. See Ellis, 197 Conn. at 470-71, 497 A.2d at 992. The court reasoned that "the
state's attorney represents the broader public interest in the effective administration of
criminal justice," and consistently emphasized the broad social policies represented by
the criminal law itself. Id. at 470-71, 497 A.2d at 992. See also id. at 465, 497 A.2d at
989-90 (competing interests of defendant, court and prosecution). Ultimately, the state's
interest in successful prosecutions prevailed over the defendant's constitutional rights,
the court's interest in securing those rights, and the public's interest in fairness to criminal defendants.
113. See, e.g., id. at 466, 497 A.2d at 990. The court stated that "doctrines of preclusion.. . must give way when their mechanical application would frustrate other social
policies based on values equally or more important than the convenience afforded by
finality in legal controversies." Id. at 466, 497 A.2d at 990. Further, the court determined
that finality is less important in criminal cases than in civil cases since the preeminent
concern is to reach the "correct result" and that strong social policies in effective administration of criminal justice outweigh a defendant's minimal interests in finality. Id. at
470-77, 497 A.2d at 992-95. See also supra note 27 and accompanying text for a discussion of judicial policy-balancing.
114. Burks, 437 U.S. at 17. The Burks Court distinguished between dismissals for
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RES JUDICATA
encouraged to treat a first trial as a "dry run," 118 to refine their
11 6
case for a second trial under the rubric of a different statute.
Such practices would be a patent waste of scarce resources, a
concern second only to the impact of such abuses of the system
on individual defendants.
Third, criminal defendants face several new dilemmas.
Their interests in liberty and finality must suffer when courts
want to cover for sloppy first prosecutions; the public, not an
accused, should suffer from such incompetency.1 1 7 The vital protection afforded the accused against vindictive and malicious
prosecutions is dangerously diluted. 8 Defendants must seriously think twice before raising valid pretrial defenses.119 In
short, criminal defendants will feel its disabling effects in a disturbing variety of ways if Ellis becomes accepted authority in
Connecticut.
V. CONCLUSION
Unbridled freedom to invoke or scorn the doctrine of res
judicata in criminal cases at the convenience of the court cannot
be seen as merely another exception carved from the law. The
Ellis court has dismantled it. Perhaps the court was compelled
by extraordinary findings of the grand jury to hold as it did.120
Even if that were the case, in refusing to block the second prosetrial error, which might not preclude another trial, as against acquittals for failure of
proof at trial which will absolutely preclude retrial. Id. The Court stressed that the prosecution was given one fair opportunity to produce whatever proof it could assemble, and
could claim no prejudice if that proof failed. Id. at 16.
115. Ashe v. Swenson, 397 U.S. 436, 447 (1970). See supra note 111 for decisions
condemning such prosecutorial practices.
116. The modern proliferation of statutory offenses has given rise to a responsible
judicial sensitivity to just this danger. See, e.g., Ashe, 397 U.S. at 445 n.10 (given emerging variety of statutory offenses, potential for "unfair and abusive reprosecutions" has
increased). For a general discussion of this point see Note, Double Jeopardy and the
Multiple-Count Indictment, 57 YALE L.J. 132 (1947).
117. See generally Lugar, supra note 14 at 345, where the author considers this
unjust imposition upon an accused.
118. See Blackledge v. Perry, 417 U.S. 21 (1974). See supra note 94 for a discussion
of Blackledge, a benchmark case on vindictive prosecution.
119. See Ellis, 197 Conn. at 483, 497 A.2d at 998 (Peters, C.J., dissenting in part)
(majority punishing defendants for asserting constitutional right to contest proceedings).
120. The majority did not acknowledge any such considerations, since to do so
would be to admit to deciding the merits of the case without a trial. The court's actual
motivations must be left to speculation, however troubling the fact that it refused a comparable opportunity to so ensnare these defendants in ParadiseI.
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cution of Brian Ellis and Wilmer Paradise the court has forced
the doctrine of res judicata to pay the price of a result-oriented
decision. The integrity of a categorical protection such as claim
preclusion under res judicata must be preserved. An occasional
repugnant outcome is the price we must pay to maintain this
constitutional protection.121 "Same claim" or "same offense"
threshold inquiries cannot be a pretext for courts to adjudicate
the merits of cases before trial. State v. Ellis is on the books,
and this may be its legacy.
Charles J. Quackenbush
121. See United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting), where Justice Frankfurter noted that "the safeguards of liberty have frequently
been forged in controversies involving not very nice people."