(dissenting). I respectfully dissent from the majority's conclusion that the State is barred under the principle of double jeopardy from prosecuting Canon for perjury. Canon relies on "collateral estoppel" as the basis for barring the perjury prosecution. The jurisdictions are divided on this question and the various opinions range from applying the majority's rationale in this case to outright rejection of this principle as applied to perjury prosecutions. See 21 Am. Jur. 2d Criminal Law § 438 (1998).
Canon argued and the majority agreed that the controlling case in this area is Ashe v. Swenson, 397 U.S. 436 (1970), in which the Supreme Court held that the doctrine of collateral estoppel was embodied in the Fifth Amendment guarantee against double jeopardy. We must keep in mind, however, that in Ashe, the Supreme Court was concerned only with properly protecting defendants from multiple prosecutions for crimes arising out of a single criminal transaction. In other words, the criminal episode was single and since the defendant had been adjudicated not a party to the robbery at the first trial, he could not be subjected to a contrary verdict at another trial involving the same incident. See id. at 446.
The Court was not addressing a separate criminal episode such as perjury committed at the trial of the first offense. Rather, the Court applied the collateral estoppel principle to a defendant who had been acquitted of robbing one member of a group of six card players. There was no question that an armed robbery had occurred. See id. at 445. The only question at Ashe's first trial was whether he was one of the rob*525bers. By acquitting him at the first trial, the Supreme Court concluded that the jury had determined that Ashe was not one of the robbers and further concluded that a second trial was merely an opportunity for the State to relitigate the question of his status as a robber. See id. Essentially, the State's attempts to try Ashe for the armed robbery of another one of the six players at the same poker game was nothing more than a second attempt to prove Ashe guilty of the same crime. This concern was central to the Court's holding in Ashe when it stated:
In this case the State in its brief has frankly conceded that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution: "No doubt the prosecutor felt 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."
Id. at 447.
The circumstances in Canon's case are far different. First, it is clear that the State is not attempting to rehash or refine the evidence used in the first trial in order to take a "second shot" at Canon. Rather, the State obtained new and additional evidence that was not previously available indicating that Canon testified falsely under oath at his trial on the traffic charges. Second, unlike the situation in Ashe where the Court prohibited the State from prosecuting Ashe a second time for the same criminal episode, Canon's alleged perjury is a separate crime occurring under different circumstances and at a different time. He is not being prosecuted for the same criminal act.
I can appreciate the dilemma whether to apply the doctrine of collateral estoppel when a defendant has *526allegedly perjured himself at a trial that ultimately resulted in his acquittal. On one hand, there is a concern that allowing an acquittal to insulate the defendant from perjury will give a defendant license to testify falsely, with a resulting detriment to the reliability of the evidence and the justice system. On the other hand, there is an apprehension that allowing a prosecution for perjury will give the State a "second shot" at the defendant for the same wrong, or allow an overzealous prosecutor to use the perjury trial to retry issues already determined in the defendant's favor.
However, when applying the prohibition against double jeopardy, the emphasis should be on underlying policies rather than technicalities. The primary considerations should be fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals.
I believe very strongly that we cannot have justice in our court system unless we can be assured that a jury's findings are based upon truthful testimony. Any rule that tends to encourage the giving of false testimony threatens the very core of the reasons for the existence of our judicial system, namely the peaceable and commendable settlement of controversies by the courts. A proposition that allows persons to escape punishment for perjury because they succeeded in inducing a jury to accept their false testimony is unreasonable. If it were so, then it follows that our laws would encourage persons such as defendants in criminal cases to perjure themselves. It is essential to the fabric and integrity of our judicial process that court proceedings and judgments be free from fraud, and that litigants and witnesses be encouraged to tell the truth and be punished if they do not. The very founda*527tion of any judicial proceeding is that our decisions rest upon truthful testimony.
In Wisconsin, we have recognized that a proceeding based upon fraud does not bar a second prosecution of a defendant for the same offense. In State v. Reid, 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 *528criminal 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.