State v. Canon

2001 WI 11, 622 N.W.2d 270, 241 Wis. 2d 164, 2001 Wisc. LEXIS 10

• Court: Wisconsin Supreme Court
• Decided: February 21, 2001
• Docket: 98-3519-CR
• Status: Published

Opinions

JON P. WILCOX, J.

¶ 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(l)(a) (1997-98)¹ 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. We conclude that it does not.

¶ 2. The State charged the defendant, Philip M. Canon (Canon), with perjury under Wis. Stat. § 946.31(l)(a) for lying at his criminal traffic trial on the issue of whether he was driving his pickup truck immediately prior to being arrested for drunk driving. Canon moved to dismiss the complaint on the grounds of "collateral estoppel," or issue preclusion, and the Circuit Court for Taylor County, Judge Douglas T. Fox, presiding, granted Canon's motion.² The court of appeals, in a split decision, affirmed the order of the circuit court.

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¶ 3. The facts are undisputed for the purposes of this review. The State charged Canon with intentionally making a false statement under oath at his criminal traffic trial for operating a vehicle while intoxicated. That criminal traffic trial in March of 1998 arose from an incident on July 4, 1996, when Canon and his companion, Cary S. Pergande, were travelling through Taylor County in Canon's pickup truck and they stopped to urinate alongside the road. A Taylor County police officer approached the two men to inquire whether they were having difficulty with Canon's truck. After talking with them, the officer concluded that Canon had been drinking and driving. As a result, the State charged Canon with operating a vehicle while intoxicated, operating after revocation, and driving with a prohibited blood alcohol level.³ At the subsequent criminal traffic trial, the sole issue was whether Canon had been the driver of the truck. Canon testified that he had not been driving his pickup truck, implicating Pergande instead. The jury acquitted Canon of all charges.

¶ 4. One month after the trial, a man named Antonio Que Sada sent a letter to the Taylor County authorities alleging that Canon had "boast[ed] about their recent trip up north" and that Canon told him that he, not Pergande, had been driving his truck at the time. The State then filed the present complaint charging Canon with perjury. Canon countered with a motion to dismiss, contending that the charge was barred by issue preclusion. The circuit court reasoned that because the sole contested issue at the criminal traffic trial was whether Canon had been driving and the acquittal by the jury established beyond a reasonable doubt that Canon had not been driving, the State was barred by Ashe v. Swenson, 397 U.S. 436 (1970), from charging Canon with lying about whether he had been driving his truck. The circuit court acknowledged that in Ashe, the United States Supreme Court recognized the doctrine of issue preclusion as one of the protections in the Double Jeopardy Clause, which prevents the State from trying a defendant twice for the same offense. Id. at 443. Therefore, the circuit court granted Canon's motion to dismiss the criminal complaint on the grounds of issue preclusion. The State appealed the circuit court's dismissal.

¶ 5. In a published opinion, the court of appeals concluded that because who was driving on July 4, 1996, had "necessarily and actually been determined in a previous litigation," the doctrine of issue preclusion applied; to allow the State to proceed would violate the double jeopardy clauses of the federal and Wisconsin constitutions. State v. Canon, 230 Wis. 2d 512, 522, 602 N.W.2d 316 (Ct. App. 1999). The State's argument that a fraudulently obtained judgment "does not carry its full preclusive weight" was rejected by the court of appeals as incongruous with Ashe. Id. at 520. Consequently, the court of appeals affirmed the circuit court's order dismissing the State's complaint. Id. at 523.

¶ 6. This court subsequently granted the State's petition for review.

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¶ 7. The application of issue preclusion to a set of facts is a question of law, which this court reviews without deference to the lower courts. Lindas v. Cady, 183 Wis. 2d 547, 552, 515 N.W.2d 458 (1994). This case involves competing policies, which must be balanced in order to preserve the central principle that undergirds the Double Jeopardy Clause on one hand and the integrity of our judicial system on the other hand.⁴ Therefore, before applying the law to the facts in the present case, it is appropriate to examine these competing policies.

¶ 8. The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment,⁵ provides that no "person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const, amend. V.⁶ This clause prevents a prosecutor from harassing a criminal defendant with multiple prosecutions. The United States Supreme Court recognized this central principle when it wrote that:

The underlying idea [of the double jeopardy prohibition], one that is deéply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby 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.

Green v. United States, 355 U.S. 184, 187-88 (1957). Based on the above principle, this court has recognized three constitutional protections provided by the Double Jeopardy Clause: (1) protection against a subsequent prosecution for the same offense after acquittal; (2) protection against a subsequent prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. State v. Vassos, 218 Wis. 2d 330, 341, 579 N.W.2d 35 (1998). Consequently, each double jeopardy claim necessitates a fact-specific analysis to determine if any of these protections are implicated.

¶ 9. On the other hand, the crime of perjury erodes the integrity of our judicial system.⁷ As the United States Supreme Court declared in United States v. Mandujano, 425 U.S. 564, 576 (1976), "[pjerjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative." Because perjury is an egregious offense, the Wisconsin legislature enacted Wis. Stat. § 946.31(l)(a) to punish lying in court, making it a Class D felony. Criminal defendants must not be allowed to stretch the Double Jeopardy Clause in order to shelter themselves from perjury prosecutions. Such a result would undermine the intent of the legislature and engender more untruthful testimony in court. See ABF Freight Sys. v. NLRB, 510 U.S. 317, 323 (1994) ("False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a 'flagrant affront' to the truth-seeking function of adversary proceedings."). To allow the crime of perjury to go unchecked would diminish the truth-seeking function of our judicial system. As the United States Supreme Court noted, "[a]ll perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. . . ,[I]t cannot be denied that it tends to defeat the sole ultimate objective of a trial." In re Michael, 326 U.S. 224, 227 (1945).

¶ 10. Echoing the United States Supreme Court, we previously have declared:

[i]t is fundamental to the American system of jurisprudence that a witness testify truthfully. Without truthful testimony, it is nigh onto impossible to achieve the primary goal of our judicial system, justice. It is because the search for the truth is central to our legal proceedings that we require each witness to take an oath of truthfulness prior to testifying.

State v. Rivest, 106 Wis. 2d 406, 416-17, 316 N.W.2d 395 (1982). The oath that each witness is required to take prior to testifying in court is set forth in Wis. Stat. § 906.03. We have observed that the purpose of this oath "is to impress the person who takes the oath with a due sense of obligation, so as to secure the purity and truth of his or her words under the influence of the oath's sanctity." Kellner v. Christian, 197 Wis. 2d 183, 192, 539 N.W.2d 685 (1995). Perjury, by definition, violates this solemn oath. Consequently, we need to balance the State's efforts to eradicate perjury from our judicial system with the fundamental principle that underlies the Double Jeopardy Clause.

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¶ 11. Canon urges this court to protect him from the consequences of his alleged offense by ruling that Ashe bars the State from prosecuting him for any perjury he may have committed at his criminal traffic trial. In Ashe, three or four masked men broke into a dwelling and robbed six poker players. 397 U.S. at 437. After the robbery, three men were arrested nearby and a fourth man, Ashe, was arrested some distance away. Id. Ashe was charged with robbing one of the six poker players, but he was acquitted when some of the witnesses were unclear whether there was a fourth man, and those witnesses that thought there was a fourth man were unsure that he was Ashe. Id. at 438. Six weeks after his acquittal, Ashe was brought to trial again, this time for robbing a second player. Id. at 439. At the second trial, the same witnesses gave much stronger testimony and the state "refined its case.. .by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative." Id. at 440. This time, the jury found Ashe guilty and he was sentenced to 35 years in the state penitentiary. Id.

¶ 12. In reviewing Ashe's conviction, the United States Supreme Court discussed the doctrine of issue preclusion. Id. at 443-47. The Court recognized the doctrine as part of the Fifth Amendment's guarantee against double jeopardy, explaining that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 442-43. The Court recounted that it previously had not recognized issue preclusion because under common law, "offense categories were relatively few and distinct" and "[a] single course of criminal conduct was likely to yield but a single offense." Id. at 445 n.10. But, the Court noted, "with the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses, it became possible for prosecutors to spin out a startlingly numerous series of offenses from a single alleged criminal transaction." Id. Hence, the Court determined that the civil doctrine of issue preclusion could be applied to combat the consequences of the manifold increase in statutory offenses. Id. at 443-44.

¶ 13. Before analyzing the particular facts in Ashe, the Court cautioned that issue preclusion "is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." Id. at 444. The Court then rejected the state's attempt to prosecute Ashe for the same robbery because the issue to be determined was whether Ashe was one of the robbers, which already had been decided at his previous criminal trial. Id. at 446. Moreover, the Court concluded that the state "ha[d] frankly conceded that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution." Id. at 447. Thus, issue preclusion, as explained by the United States Supreme Court, is a doctrine to prevent prosecutorial misconduct and give finality to judicial determinations made in one criminal transaction; it is not a technicality that allows a criminal defendant to escape the consequences of false testimony. That is, issue preclusion prevents prosecutors from throwing a smorgasbord of charges at a criminal defendant, all stemming from a single criminal transaction, and hoping something will stick after several test runs. See Bolden v. Warden, West Tenn. High Sec. Fac., 194 F.3d 579, 585 n.20 (5th Cir. 1999) (noting that "[a] primary concern of the Supreme Court in Ashe was the prosecution's use of the first trial as a 'dry run' for the second prosecution").

¶ 14. Turning to the case at hand, we find it clearly distinguishable from Ashe. In Ashe, the defendant was being tried again based on the testimony of the same witnesses for the same criminal transaction. By contrast, in the present case, Canon is not being charged for anything that he allegedly did on July 4, 1996, on a Taylor County highway. Instead, he is being charged with what he may have done in March of 1998 in a Taylor County courtroom: he allegedly lied under oath about a material fact. The perjury charge stems from a criminal transaction distinct from the operating while intoxicated, operating after revocation, and driving with a prohibited blood alcohol level charges. See Ashe 397 U.S. at 453-54 (Brennan, J. concurring) (asserting that "same offence" is best defined by whether the crime arose from "a single criminal act, occurrence, episode, or transaction"). Furthermore, new evidence — the letter from Que Sada — has come to light in the present case, which was allegedly not available prior to Canon's criminal traffic trial.⁸ This case does not raise the specter of a wayward prosecutor charging a criminal defendant with a startling number of offenses for the same criminal transaction, a scenario the Ashe Court emphatically condemned. See id. at 445 n.10.

¶ 15. Canon urges this court to affirm the decision of the court of appeals because the same issue for which he was acquitted in his criminal traffic trial — who was driving the pickup truck on July 4, 1996 — necessarily will be determined at his perjury trial. We do not read Ashe so broadly to give criminal defendants an unfettered prerogative to perjure themselves at a criminal trial where there is a single issue. Such a ruling would materially weaken our judicial system's primary truth-finding purpose. See Brogan v. United States, 522 U.S. 398, 402 (1998) (expressing that "[w]e cannot imagine how it could be true that falsely denying guilt in a Government investigation does not pervert a governmental function"). As Chief Judge R. Thomas Cane noted in his court of appeals dissent, "[t]o accept Canon's argument would be to allow the concept of [issue preclusion], 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." State v. Canon, 230 Wis. 2d at 527. We agree. Analyzing the facts in this case with realism and rationality leads us to conclude that the State may proceed with its complaint in order to address the problem of perjury in our judicial system. Thus, we reject Canon's argument.

¶ 16. Other courts likewise have observed that Ashe does not give defendants a license to perjure themselves. In State v. Redinger, 312 A.2d 129 (N.J. 1973), the New Jersey Supreme Court reached a similar result. There, two defendants were tried separately for the same reckless driving offense. Id. at 130. The first defendant, whose license previously had been revoked for traffic offenses, was acquitted on the charge of reckless driving based on his defense that he was not driving at the time of the offense. Id. at 130-31. The second defendant, who did not have a record, subsequently was charged with reckless driving and he pled guilty to the offense. Id. at 131. The trial judge "stated that he wanted the story under oath" and the second defendant testified — in accordance with the testimony of the first defendant — that he was driving at the time of the incident. Id. The state, however, had two witnesses who contradicted the testimony of the two defendants. Id. The two witnesses stated that the first defendant, not the second defendant, was driving at the time of the incident. Id. Consequently, the state charged the second defendant with perjury. Id.

¶ 17. In its reasoning, the New Jersey Supreme Court scrutinized Ashe and asserted that there, "the criminal episode was single and since. [Ashe] had been adjudicated not a party to [the criminal episode] at the first trial, he could not be subjected to a contrary verdict at another trial." Id. at 134. The court concluded:

[t]he Fifth Amendment prohibition against twice putting a person in jeopardy "for the same offense" does not apply where the "offenses" involved are as different as a substantive crime on the one hand, and perjury (or other related charge) committed at the trial of the charge of commission of that crime, on the other.

Id. Therefore, the New Jersey Supreme Court found that Ashe would not bar the perjury prosecution.⁹

¶ 18. The Louisiana Supreme Court followed this reasoning in State v. Bolden, 639 So. 2d 721, 726 (La. 1994), and adopted a newly discovered evidence exception for such situations. There,' the court ruled that the state may proceed with a perjury prosecution on an issue adjudicated at a previous trial if the prosecutor presents newly discovered evidence. Id. The Fifth Circuit approved of this exception in Bolden's subsequent federal habeas proceeding because it balances "the concern that the prosecution will get a 'second shot' at the defendant with the concern that the defendant will have an 'uncontrollable license' to testify falsely at the first trial, without fear of repercussions." Bolden, 194 F.3d at 585 n.20.¹⁰

¶ 19. Finally, the Minnesota Supreme Court noted this newly discovered evidence exception in a perjury case where the defendant was acquitted of a speeding charge but subsequently convicted of committing perjury at his speeding trial. The court observed that the newly discovered evidence exception was one of five different possibilities for resolving the difficult question of "when acquittal of a crime will bar the defendant's subsequent prosecution for perjury for testimony given in his own behalf at trial." State v. DeSchepper, 231 N.W.2d 294, 297 (Minn. 1975). The DeSchepper court further recognized that there is a:

respectable body of authority which concludes that the concepts of res judicata and collateral estoppel do not apply to a judgment procured by fraud or perjury. Some suggest that Ashe does not require a state to give collateral-estoppel effect to a verdict of acquittal if the defendant committed perjury to obtain it.

Id. at 299. The court, however, did not have to rule on whether the newly discovered evidence exception applied in the case before it because the jury could have found the defendant's testimony unbelievable and still acquitted him of the speeding charge. Id. at 303. As a result, the court upheld the perjury conviction. Id.

¶ 20. Although there are no relevant Wisconsin cases, Canon presses this court to look to federal case law where Ashe has been invoked to bar a second prosecution. See United States v. Stoddard, 111 F.3d 1450 (9th Cir. 1997); United States v. Hernandez, 572 F.2d 218 (9th Cir. 1978); United States v. Brown, 547 F.2d 438 (8th Cir. 1977); United States v. Nash, 447 F.2d 1382 (4th Cir. 1971); United States v. Robinson, 418 F. Supp. 121 (Md. 1976); United States v. Barnes, 386 F. Supp. 162 (E.D. Tenn. 1973); United States v. Drevetzki, 338 F. Supp. 403 (N.D. Ill. 1972). However, in none of the federal cases upon which Canon relies did the government assert it had uncovered new evidence that would support a perjury complaint.

¶ 21. The only federal case cited by Canon that is somewhat analogous to the present facts is United States v. Nash, 447 F.2d 1382. In Nash, the government alleged that the defendant lied at her trial for stealing from a mailbox. Id. at 1383. The defendant appealed her conviction of perjury. Id. Because a jury acquitted the defendant at the mail theft trial, the Fourth Circuit Court of Appeals reasoned that the jury necessarily decided that the defendant was credible. Id. at 1385. Therefore, under Ashe, the court held that the subsequent prosecution was barred because the jury in the perjury case determined that the defendant was not credible on the same issue. Id.

¶ 22. The majority's opinion in Nash did not indicate that the government presented new evidence at the perjury trial and Judge Winter, in a concurrence, asserted that his comparison of the mail theft trial transcript with the perjury trial transcript "discloses that, at the trial for perjury, the evidence was a mere rehash of the evidence adduced at the first trial." Id. at 1387. But while accepting the holding, the concurrence rejected the notion implicit in the majority's opinion that every time a jury finds a defendant credible, the "government is forever foreclosed from prosecuting her for perjury." Id. Judge Winter then observed: "In almost every criminal prosecution resulting in acquittal where the defendant has testified, it may be said that the jury passed on the defendant's credibility and found him truthful. Yet we should not encourage prevarication by saying that necessarily such a defendant is immune from prosecution for perjury." Id. Judge Winter further advocated the rule that if "the government produces new and additional evidence that defendant lied under oath at his first trial sufficient to permit the trier of fact to conclude beyond a reasonable doubt that perjury had been committed," the government should be able to try the defendant for perjury. Id. Such an exception, which balances the need to preserve the statutory offense of perjury with double jeopardy protections, is what we adopt today.

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¶ 23. A narrow newly discovered evidence exception to issue preclusion comports with the competing policy interests at stake in the present case. See Bolden, 639 So. 2d at 726; Bolden, 194 F.3d at 585 n.20; DeSchepper, 231 N.W.2d at 299; Note, Perjury by Defendants: The Uses of Double Jeopardy and Collateral Estoppel, 74 Harv. L. Rev. 752, 763 (1961) (recommending that courts balance the policy considerations embedded in the Double Jeopardy Clause with concern about perjury by employing a newly discovered evidence exception). We are convinced that the appropriate balance between the competing policy interests can be struck with the following narrow newly discovered evidence exception.¹¹ The State must establish by clear and convincing evidence¹² 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. See Lock v. State, 31 Wis. 2d 110, 117, 142 N.W.2d 183 (1966). This court, in Birdsall v. Fraenzel, 154 Wis. 48, 52, 142 N.W. 274 (1913), outlined this exception for a new trial and rejected its application where the appellant sought to introduce new evidence that allegedly impeached the other party's testimony. In doing so, this court noted that evidence "only impeaching in character" is not ordinarily "ground[s] for a new trial," but "[i]t may well be that newly discovered evidence impeaching in character might be produced so strong as to constitute ground[s] for a new trial; as for example where it is shown that the verdict is based upon perjured testimony." Id.

¶ 24. Today, we rule only that newly discovered evidence may allow the State, after meeting the test set out above, to proceed with a charge of perjury.¹³ Such a narrowly tailored exception will enable the State to pursue some of the perjury in our judicial system without running afoul of a criminal defendant's Double Jeopardy Clause protections. As the United States Supreme Court recognized in Harris v. New York, 401 U.S. 222, 226 (1971), constitutional protections cannot be misused to the benefit of a perjurer. There, the Supreme Court ruled that a defendant's statements — made without a Miranda warning — could be used for impeachment purposes. Id. The Court asserted that "[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense." Id. We similarly hold that issue preclusion cannot be perverted into a license to perpetrate perjury in our courts. However, the newly discovered evidence exception preserves the protections of the Double Jeopardy Clause by preventing a prosecutor from trying an individual twice for the same offense. This exception will alleviate some of the discomfort other courts have had in mechanically applying Ashe to preclude perjury prosecutions. See United States v. Robinson, 418 F. Supp. at 126 ("This Court is concerned that allowing an acquittal to afford any sort of insulation for perjury will be giving defendants an uncontrollable license to testify falsely.").

¶ 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.¹⁴

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¶ 26. In conclusion, we hold that the State can proceed with the charge of perjury against Canon if the circuit judge finds that the new evidence proffered by the State satisfies the requirements set forth above. We therefore reverse the decision of the court of appeals.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

1 All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

2 In Wisconsin, the term "collateral estoppel" has been replaced by the less confusing term "issue preclusion." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995).

3 This was Canon's sixth charge for operating a vehicle while intoxicated and third charge for operating after revocation.

4 For a thorough analysis of issues raised by these competing policies, see James A. Shellenberger, Perjury Prosecutions After Acquittals: The Evils of False Testimony Balanced Against the Sanctity of Determinations of Innocence, 71 Marq. L. Rev. 703 (1988).

The legislature has expressed the importance of guarding the integrity of our judicial system through several criminal law provisions. See Wis. Stat. § 946.61 (Bribery of witnesses); Wis. Stat. § 946.64 (Communicating with jurors); Wis. Stat. § 946.65 (Obstructing justice); Wis. Stat. § 940.201 (Battery or threat to witnesses); Wis. Stat. § 940.203 (Battery or threat to judge). Such laws bolster the principles of honesty and fair play in our judicial system.

5 See Benton v. Maryland, 395 U.S. 784, 787 (1969) (holding that the Double Jeopardy Clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment).

6 See George C. Thomas III, Double Jeopardy: The History, The Law (New York University Press 1998) (tracing the history of double jeopardy and noting the difficulty the United States Supreme Court has had in fashioning a clear interpretation of the seemingly unambiguous language of the clause).

7 See, e.g., Mark Curriden, The Lies Have It, 81-May A.B.A. J. 68, 69-71 (1995) (noting that "[j]udges, lawyers and experts on the court system worry that perjury is being committed with greater frequency and impunity than ever before"); Comment, Perjury: The Forgotten Offense, 65 J. Crim. L. & Criminology 361 (1974) (asserting that "[i]t is undenied that perjury is both a frequent and substantial threat to the effective administration of justice"); Cate Gillen et al., Perjury, 28 Am. Crim. L. Rev. 619 (1991) (discussing the role of the federal offense of perjury in preserving the integrity of the federal judicial system).

8 But cf. Harris v. Washington, 404 U.S. 55 (1971) (overturning state court ruling that defendant could be retried because the judge erroneously excluded evidence of identity). Harris is distinguishable from the present case because there the prosecutor sought to retry the defendant for the same criminal transaction. Id. at 56-57. Here, the State seeks to charge Canon with a new crime committed at a different time and place with new evidence that allegedly came to light after his criminal traffic trial.

9 The New Jersey Supreme Court did not require the evidence of perjury to be "newly discovered." In fact, the state had the statements of the two witnesses prior to the second defendant's testimony. State v. Redinger, 312 A.2d 129, 131 (N.J. 1973). The trial judge probably knew of the statements of the witnesses for "[h]e did not accept [the second defendant's] plea of guilty without first putting [him] under oath and having him testify that he was driving the car. He also reminded [him] of the perjury laws of [New Jersey]." Id.

10 Although the Fifth Circuit recognized that it was not required to review the "Louisiana Supreme Court's alternative adoption of the 'new and additional evidence' exception to later perjury prosecutions," the court decided "to address this issue for the sake of completeness." Bolden v. Warden, West Tenn. High Sec. Fac., 194 F.3d 579, 585 n.20 (5th Cir. 1999). In reviewing the exception, the Fifth Circuit concluded that "[w]ere we to decide this issue, we would find that this exception is not 'contrary to' federal law as established by the Supreme Court." Id.

11 The-deep roots of the newly discovered evidence exception in perjury prosecutions are evinced by two federal cases asserting that the government can proceed on a pexjury charge where the defendant committed the alleged offense at a prior criminal trial. See Kuskulis v. United States, 37 F.2d 241, 242 (10th Cir. 1929); Allen v. United States, 194 F. 664, 667 (4th Cir. 1912) (dicta).

12 The clear and convincing standard is the same burden that a criminal defendant must meet in order to obtain a new trial based on newly discovered evidence. See State v. Carnemolla, 229 Wis. 2d 648, 656, 600 N.W.2d 236 (Ct. App. 1999). Furthermore, it is the same standard that a criminal defendant must meet in order to withdraw a plea following sentencing when his or her motion was supported with new evidence. See State v. McCallum, 208 Wis. 2d 463, 473-74, 561 N.W.2d 707 (1997).

13 The newly discovered evidence requirement is at the core of this limited exception for it is this factor which protects criminal defendants from having to run the gauntlet of a criminal trial a second time. See United States v. Sarno, 596 F.2d 404, 407 (9th Cir. 1979) (stating that "unless the subsequent perjury indictment is based upon evidence which was not available at the first trial. . .the government would be merely trying to recover from its initial failure to convince the trier of fact of the falsity of defendant's testimony at the first trial").

14 We fully agree with Justice Bablitch's dissent insofar as it provides that under certain circumstances, a newly discovered evidence exception to the doctrine of issue preclusion is necessary to best balance the competing interests of finality of previously litigated issues and the truth-seeking function of our justice system. We further agree that "[t]he State should only be able to retry a defendant in very limited circumstances. . . ." However, unlike Justice Bablitch, we do not believe that the record is sufficiently developed for us to determine whether the State can meet the test set forth above.