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State v. Canon9/21/1999
, 166 Wis.2d 139, 479 N.W.2d 572 (Ct. App. 1991), the trial court declared a mistrial because of a defense witness's perjury. We held that his retrial was not barred by double jeopardy and observed that the right to have a trial continued to judgment must sometimes be subordinated to the public's interest in fair trials designed to end in just judgments. Importantly, we emphasized that the public's interest in fair trials and just judgments will not tolerate nor allow a defendant to benefit from defrauding the court. Id. at 147, 479 N.W.2d at 575.
Here, it is clear that the ultimate issues of fact involved in the two proceedings (traffic violations versus perjury) are entirely different. Apart from this fact, equity and Justice require that we insist upon honest testimony under oath in our judicial proceedings. To accept Canon's argument would be to allow the concept of collateral estoppel, which is designed to protect an accused from prosecutorial harassment, to be used as a shield to insulate a defendant from his own wrongdoing in fraudulently obtaining a favorable result in a criminal case. It is much better to preserve the sanction against perjury, which is always wrong and unacceptable in the judicial system, than to be moved by the mere opportunity for abuse by a renegade prosecutor.
I would conclude that the Fifth Amendment prohibition against putting a person in jeopardy twice "for the same offense" does not apply where the "offenses" involved are different and arise out of separate criminal episodes. Canon is charged with a separate criminal episode of perjury and not with the traffic violations for which he was acquitted. The ultimate fact issue at this trial is whether he lied under oath at his former trial, not whether he committed the traffic violations.
Additionally, even where as here a defendant's testimony relates to the main facts at issue and his conviction for perjury would necessarily import a contradiction of the not guilty verdict of the former charge, I would conclude that as a matter of public policy the former acquittal is no bar to prosecution for perjury committed at the former trial. Where the State has new and additional evidence not previously available to it indicating that Canon testified falsely under oath during his trial, the perjury trial may not be characterized as a "second shot" at the defendant or a disgruntled prosecutor's attempt to retry the case under the guise of a perjury prosecution.
To apply collateral estoppel to these facts serves to immunize Canon from the separate and independent crime of perjury and reward his falsehood. Thus, the doctrine of collateral estoppel should not be available to a defendant in a prosecution for perjury. Accordingly, I would reverse the order dismissing the perjury charge and remand the matter for trial.
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