¶ 27. (dissenting). I agree with the result reached by the circuit court and court of appeals, not the result reached in the majority opinion. I dissent from the majority opinion because it does not adequately assist litigants or the courts in resolving this troublesome issue: when does acquittal of a crime bar the State from *185prosecuting a defendant for perjury for testimony the defendant gave at trial on his own behalf?
¶ 28. Courts and commentators take different approaches to a defendant's suspected perjured testimony because of the difficulty of balancing the competing legal policies of truth seeking and protection against prosecutorial harassment.1 The majority opinion attempts to balance the competing interests by adopting a "narrow newly discovered evidence excep*186tion to issue preclusion."2 The majority opinion concludes that the State "can proceed with the charge of perjury. . .if the circuit judge finds that the new evidence proffered by the State satisfies"3 the newly created narrow newly discovered evidence rule "based on the longstanding rule governing the granting of a new trial because of newly discovered evidence in a criminal case."4 The majority opinion would require the State to establish before the circuit court the elements of the narrow newly discovered evidence rule before proceeding with the perjury charge.
¶ 29. Although I agree with the majority opinion that resolving the double jeopardy and truthful testimony interests in the present case and similar perjury-after-acquittal cases is difficult, I cannot join the majority opinion because it does not adequately assist litigants or the courts in resolving this troublesome issue and does not reach the correct result in the present case.
¶ 30. First, the majority opinion does not tell us when its narrow newly discovered evidence rule comes into play. Although the majority opinion characterizes *187its narrow newly discovered evidence rule as an exception to issue preclusion, the majority opinion does not discuss issue preclusion in the context of the present case. Does the narrow newly discovered evidence rule come into play in all cases in which an acquitted defendant is charged with perjury, or only in those cases in which issue preclusion exists? The State proposes the newly discovered evidence rule to "only apply after the court has determined that collateral estoppel would normally bar a subsequent perjury prosecution."5 For purposes of applying the newly created narrow newly discovered evidence exception to issue preclusion in the present case, the State assumes that the "perjury prosecution would require relitigation of a factual issue decided in his first trial; namely whether he was the driver of his pickup truck... ."6
¶ 31. The majority opinion is silent about this question of issue preclusion, even though both parties have identified it as a central question for this court. The majority opinion does not identify the issues involved in the perjury prosecution or address whether these issues were litigated and determined by the fact *188finder in rendering the acquittal in the initial trial. The doctrine of issue preclusion in perjury-after-acquittal cases may often be difficult for lower courts to apply, especially since the majority opinion offers no guidance on this score.
¶ 32. Second, the narrow newly discovered evidence exception needs to be explained more fully. It appears that the majority's "narrow" new evidence test means that the test will be applied "narrowly" to protect acquitted defendants from subsequent perjury prosecutions. The majority opinion expressly says that the State should only be able to try a defendant for perjury in very limited circumstances.7
. ¶ 33. Less clear is what the majority opinion means when it states, as a prong of the narrow newly discovered evidence exception, that "the new evidence must be material to the issue."8 Material to what issue? An issue at the first trial for the substantive offense? That the false testimony necessarily constituted a material basis for the acquittal? An issue at the second trial for perjury? How does this prong in the narrow newly discovered evidence exception to issue preclusion fit with the fifth element of the substantive offense of perjury that requires that the false statement be material?9
*189¶ 34. The majority opinion also does not explain why it has omitted the fifth and last prong of the narrow newly discovered evidence rule applicable to a defendant's motion for a new trial. The fifth prong requires that the new evidence would probably change the result of the first trial. In advocating this new evidence test, the State's brief asserts, without explanation, that this fifth prong is not applicable. Instead the State seems to substitute for the fifth prong a probable cause standard. The State's brief contends that "in order for the perjury complaint to state probable cause, the new and pre-existing evidence stated in the perjury complaint must provide probable cause to believe that the defendant committed perjury at his or her prior trial."10 However, the majority opinion is silent about both the omitted fifth prong and the probable cause prong suggested by the State.
¶ 35. I would not permit the perjury charge to proceed in the present case even if I were to apply the "narrow newly discovered evidence rule" the majority opinion adopts, as best I understand it. The State's perjury complaint sets forth the defendant's testimony at trial that he was not the driver. It also has as an attachment an unsworn statement by a witness asserting that before the defendant's trial the defendant admitted at a local tavern that he was driving the vehicle.
¶ 36. At trial the State attempted to introduce an unsworn statement by the other occupant of the vehicle *190(who did not appear at trial) that the defendant was driving the vehicle. When the trial court ruled this evidence inadmissible, the State opted to go forward with its prosecution despite being left with almost no evidence of the defendant's guilt.
¶ 37. Now it appears that the prosecution is trying to recover from its initial failure to convince the trier of fact at the first trial of the falsity of the defendant's testimony by relying on evidence similar to evidence it was unable to introduce at trial. The new unsworn statement is cumulative evidence; it is the same type of evidence the State attempted to introduce at trial. This rehashing of the evidence on an issue that was apparently decided in the first trial is, I think, prohibited by issue preclusion and does not fall within the narrow newly discovered evidence exception.11
¶ 38. In cases such as this one involving the constitutional issue of double jeopardy, I would, adhering to the majority opinion's repeated expression of its narrow exception to issue preclusion and the view expressed in Justice Bablitch's dissent, impose a heavy burden on the State at this initial stage of the proceeding to justify its right to proceed with the perjury prosecution. Under the circumstances of this case I would conclude, as a matter of law, that the written complaint, resting on yet another unsworn statement, does not provide probable cause to believe that the defendant committed perjury at the prior trial. Probable cause in a perjury prosecution after acquittal *191should be a high hurdle for the State. As we all know, probable cause is not a single defined standard; there are degrees of probable cause.12
¶ 39. For the reasons set forth, I dissent.
¶ 40. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
See, e.g., State v. DeSchepper, 231 N.W.2d 294, 297 (Minn. 1975), in which the Minnesota Supreme Court summarized the following five approaches proposed by courts and commentators concerning perjury-after-acquittal prosecutions:
1. A person acquitted of an offense is wholly immunized from subsequent prosecution for perjury based upon testimony given in his own behalf at the first trial.
2. A person acquitted of an offense may always be prosecuted for perjury based upon testimony given in his own defense, without regard to the nature of the testimony even though the two verdicts are logically inconsistent.
3. A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense if a conviction of perjury would necessarily import a contradiction of the acquittal.
4. A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense if it appears from the record that the fact finder probably passed upon the credibility of the testimony in question in order to reach its verdict of acquittal.
5. A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense unless the state introduces evidence at the perjury trial which was not available to the fact finder at the first trial and which independently tends to establish that defendant committed perjury while testifying in his own behalf.
Majority op. at ¶ 23. See Wis. Stat. § 805.15 (1999-2000) governing motions for new trial based on newly discovered evidence.
Majority op. at ¶ 26.
Majority op. at ¶ 23. These requirements are set forth in Lock v. State, 31 Wis. 2d 110, 117, 142 N.W.2d 183 (1966), as follows:
(1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at the trial[;] and (5) it must be reasonably probable that a different result would be reached on a new trial.
State's Brief at 12.
The State also argues in the alternative that the circuit court in this case should review the entire record of the prior criminal traffic prosecution to determine whether the perjury claim is barred by issue preclusion. The State argues that the jury did not necessarily find that the defendant was telling the truth when he testified. The jury could have disbelieved the defendant but found that the State did not prove beyond a reasonable doubt that the defendant was driving the vehicle. The State concludes: "Since the issue to be litigated at the perjury trial is whether [the defendant] told the truth at his drunk driving trial, his perjury prosecution should not be barred by collateral estoppel [that is, issue preclusion]." State's Brief at 39.
Majority op. at n.14.
Majority op. at ¶ 23. Material facts are those that are of consequence to the merits of the litigation. See Wis. Stat. § 904.01 (1999-2000); Johnson v. Kokemoor, 199 Wis. 2d 615, 635, 545 N.W.2d 495 (1996).
Wis. Stat. § 946.31 (1999-2000); see also Wis JI — Criminal 1750: Perjury (1995) ("A material statement is one which tends to prove or disprove any fact that is of consequence to the determination of the proceeding in which the statement was made.").
*189For a discussion of the issue of materiality in peijury prosecutions, see James A. Schellenberger, Perjury Prosecutions After Acquittals, The Evils of False Testimony Balanced Against the Sanctity of Determinations of Innocence, 71 Marq. L. Rev. 703, 744-45 (1988).
State's Brief at 34.
See United States v. DiFrancesco, 449 U.S. 117, 128 (1980) (stating that one of the express purposes of double jeopardy protection is to prevent the prosecution from having "another opportunity to supply evidence which it failed to muster in the first proceeding") (quoting Burks v. United States, 437 U.S. 1, 11 (1977)).
See County of Jefferson v. Renz, 231 Wis. 2d 293, 321, 603 N.W.2d 541 (1999) (Abrahamson, C.J., concurring) (diagram showing different degrees of probable cause).