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State v. Brunet5/10/2002
low stakes setting before the criminal trial. See Begins, 147 Vt. at 297, 514 A.2d at 721; see Tibbs v. Florida, 457 U.S. 31, 41 (1982) (multiple prosecutions give the State "another opportunity to supply evidence which it failed to muster in the first proceeding" and allow the State to "hon its trial strategies . . . through successive attempts at conviction") (internal quotations omitted). Finally, the State is not precluded, on double jeopardy grounds, from bringing a subsequent criminal prosecution based on the same facts.
The only prejudice the State suffers in this scenario, assuming collateral estoppel applies, is the preclusive effect of any specific issues of fact decided at the revocation hearing. But the State can avoid that harm completely by choosing to prosecute the underlying offense first. We confronted the problems raised by the order of prosecution in Begins, and concluded that " hen it is not detrimental to the probationer or to the public's safety, the better method of dealing with problems of concurrent criminal and probation revocation jurisdiction is to postpone the probation proceedings until after disposition of related criminal proceedings." 147 Vt. at 300, 514 A.2d at 723. In Begins, we recognized the disadvantages to a defendant who is subject to two proceedings, and found it necessary, to preserve a defendant's Fifth Amendment right to remain silent, to create an exclusionary rule to prevent the State's use of a defendant's testimony in the subsequent criminal prosecution. Id. at 299-300, 514 A.2d at 722-23. But we did not remove from the State the discretion to make the choice on the order of prosecution. 147 Vt. at 298, 514 A.2d at 722. Because the State can avoid any potential prejudice to its criminal case, it is not fair to allow the State "to treat the revocation hearing as a 'Heads I win, tails I flip again' proposition." Lucido, 795 P.2d at 1243 (Broussard, J., dissenting).
Moreover, revocation proceedings are not like other hearings where the need for summary dispositions explains our reluctance to give their results preclusive effect. This case is unlike State v. Stearns, 159 Vt. 266, 617 A.2d 140 (1992) where we declined to apply collateral estoppel to bar prosecution for DUI when the State failed to prove the defendant refused to take a breath test at a civil suspension hearing. There, we held that the State had not had a "full and fair opportunity" because the civil suspension hearing is a summary proceeding designed to get suspected drunk drivers off the road expeditiously. Id. at 271, 617 A.2d at 142-43. See 23 V.S.A. § 1205 (providing for civil suspension of driver's license by affidavit alone). Similarly, we do not apply collateral estoppel to small claims cases because in those proceedings the procedures have been designed to "provide a simple, informal and inexpensive procedure for determining" cases with small amounts in controversy, where the parties are typically unrepresented by counsel. Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469, 661 A.2d 89, 91 (1995) (citation omitted). These informal procedures are "woefully inadequate" to support the application of collateral estoppel in a subsequent suit. Id. at 470, 661 A.2d at 91-92. In revocation proceedings, in contrast, there is no need for promptness or accessibility or informality that limit the procedures, such that application of collateral estoppel in a subsequent criminal trial would be unfair. To the extent that public safety is threatened by the probationer, the State may use conditions of release or the denial of bail on the new charges to protect the public. See Lucido, 795 P.2d at 1238-39 (Mosk, J., dissenting).
The final consideration of the fairness question is t
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