(concurring). I agree with the majority that this Court should decline the prosecutor’s invitation to allow the application of collateral estoppel or res judicata in a criminal case to conclusively establish an essential element as a matter of law in the retrial of the felony-murder conviction by instructing the jury to accept the valid conviction of armed robbery obtained in the first trial as the underlying felony.
*611I write separately because I do not agree with the majority’s conclusion that the constitutional right to an impartial jury, US Const, Am VI,1 would be violated by the use of a valid armed-robbery conviction to establish an element in a subsequent prosecution for felony murder.
I do, however, believe the application of collateral estoppel or res judicata in the retrial of this case would impermissibly disable the presumption of innocence an accused is entitled to in accordance with due process guaranteed under the federal and state constitutions.2 Invocation of the principle of collateral estoppel or res judicata as a bar to relitigation is inappropriate when applied against a criminal defendant to essential elements of a crime arising out of the same transaction. A criminal defendant’s due process right to a fair trial, in which there is a presumption of innocence and the requirement that the state prove every element of the charge beyond a reasonable doubt, outweigh any interest in judicial economy and efficiency asserted by the prosecutor.
i
The defendant was convicted by a jury of first-degree felony murder,3 assault with intent to commit murder, first-degree criminal sexual conduct, kidnapping, and armed robbery. This Court reversed the first-degree felony murder conviction by order, declaring error in the jury instruction regarding the omission of intent required for aiding and abetting. A retrial was ordered on the felony-murder charge. All other convictions were affirmed_
*612During a pretrial motion hearing, the prosecution made the following request to the trial judge:
"[M]y motion is essentially that the jury in Mr. Goss’ felony murder trial should be instructed that the element of armed robbery necessary for the jury to convict him of felony murder has already been proven and that it’s not an issue for them to decide . . . the Defendant has had that element already proven, and that the jury in this trial should be advised that that element has been proven. And then they would focus simply on the remaining issue, which would be whether or not the Defendant aided or assisted in the commission of a murder during that armed robbery for which he already stands convicted.
So in this regard I think that we have met our burden already of proving that particular element. Defendant does not have a right to have two juries make that same decision.
II
Res judicata has been applied in the civil context to bar relitigation of an issue adjudicated in the same cause of action. Jones v Chambers, 353 Mich 674, 680-681; 91 NW2d 889 (1958). Collateral estoppel bars relitigation of factual determinations reached in a different cause of action. Id.
Where asserted against the government by criminal defendants, the Fifth Amendment double jeopardy claim,4 has been viewed as the constitutional embodiment of the doctrine of collateral estoppel. Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970). Where it can be determined from a prior decision to acquit that an issue of ultimate *613fact has been resolved in favor of the defendant, the prosecution is foreclosed by the constitutional bar of double jeopardy from entertaining a subsequent prosecution that would relitigate that issue of ultimate fact. Id., pp 445-447.
In contrast, this case presents the offensive use of the results of prior adjudication against the criminal defendant. Interestingly, aspects of both the doctrine of res judicata and collateral estoppel are presented. Obviously armed robbery is a different cause of action than felony murder. As the lead opinion aptly explores, the jury determination that the defendant is guilty of armed robbery as charged under count sixteen, even though logically equivalent to a finding of guilt on the first element of felony murder, is not the equivalent, given the capacity for inconsistency allowed to a jury in rendering its assessment of guilt. See ante, pp 597-600. Thus, there is no res judicata of the felony element of the felony-murder charge absent the fact that it can be inferred from the guilty verdict that the predicate felony was deemed to have been committed. What the prosecutor is arguing in his request that the jury verdict regarding count sixteen be applied as conclusive evidence of the predicate felony is a request for collateral estoppel.
The distinction between the two doctrines, as noted in the dissenting opinion, is not dispositive of this case because there is no legal basis for allowing the use of one type of preclusion and not the other. See post, p 622, n 1. The distinction, however, does illustrate the potential for the doctrine of res judicata to turn a retrial into a meaningless procedural exercise in which the result is all but dictated to the jury if everything properly decided by the first jury is recycled for mandatory use by the second jury. If we were to accept the prosecutor’s request, res judicata, taken to its *614extreme, could be invoked under these facts to transfer all elements of felony murder established by reference to the guilty verdict obtained in the first trial. Every one of the elements of felony murder that was necessarily found for the prosecution at the conclusion of the first trial would have to be accepted by the jury. Only the omitted intent determination would be left for the jury at the conclusion of the retrial.
iii
The felony-murder statute under which the defendant was committed, MCL 750.316; MSA 28.548,5 calls for the factfinder to determine *615whether a felony was committed, not whether the defendant has been convicted. The majority today overextends the Sixth Amendment right to an impartial jury when it holds that that right encompasses the right to an independent jury determination of each essential element of the crime. Ante, pp 599-600.
I agree with the understanding expressed in the dissenting opinion on this issue to the extent that the Sixth Amendment right to an impartial jury functions to provide a check on the power of the government over the individual. The right insures the accused has the option of having the ultimate determination of his innocence or guilt rendered by peers rather than officials. Duncan v Louisiana, 391 US 145, 155; 88 S Ct 1444; 20 L Ed 2d 491 (1968).
The rights afforded by the Sixth Amendment *616also guarantee an impartial jury. Impartiality addresses the state of the jury before the trial begins. The right includes the procedures in place to call jurors and name them to a panel for a given trial. The system of selection should not allow jurors who are biased or predisposed. Witherspoon v Illinois, 391 US 510; 88 S Ct 1770; 20 L Ed 2d 776 (1968). The constitutional issues surrounding the requirement of an impartial jury center on insuring that the process by which the jury is drawn contemplates a fair representation of the community. JEB v Alabama ex rel TB, 511 US _, _, n 19; 114 S Ct 1419; 128 L Ed 2d 89, 105, n 19 (1994).
The defendant in this case was able to select a jury trial in the first prosecution and will be able to on retrial. He participated in voir dire and registered no complaint that the manner in which the jury was impaneled did not' contemplate a representation of the members of the community. There were no complaints that any juror demonstrated bias or predisposition and was allowed to remain. Where a conviction has been validly obtained in a prior trial under these circumstances, its use does not render the jury impartial under the Sixth Amendment, nor does it deprive the defendant of a Sixth Amendment right to a jury decision regarding the remainder of the case. An impartial jury did determine that the defendant committed an armed robbery. Similarly, an impartial jury will determine whether or not the defendant committed felony murder regardless of whether the prosecution is granted the preclusive use of the first jury’s finding with respect to the armed robbery.
As noted by the dissent, the prohibition against a directed verdict is a prohibition against the judge refusing to allow any jury to decide the elements. Post, p 635. Here a jury has been al*617lowed to pronounce the defendant guilty of armed robbery.6 The prosecutor’s argument is for the recognition of that finding in the retrial as distinguished from a governmental agent’s intervention in the fact finding.
iv
Having concluded that the defendant is not deprived of his Sixth Amendment right to an impartial jury by the application of res judicata or collateral estoppel, I now turn to discuss the inherent prejudice to the defendant’s right to a fair trial that is unavoidable in the use of these doctrines against a criminal defendant in a situation in which more than one charge of criminal activity arises from the same nucleus of facts.
While framed in a right to jury analysis, the New Jersey Supreme Court found the preclusive use of a prior conviction to establish an element of a crime in a subsequent prosecution under facts similar to those presently considered to induce the jury "to think in terms of guilt, instead of presumed innocence, before its deliberations have begun.” State v Ingenito, 87 NJ 204, 216; 432 A2d 912 (1981).
"[T]he presumption of innocence . . . is . . . the most universal and strongest presumption known to law . . . .” People v Licavoli, 264 Mich 643, 655; 250 NW 520 (1933). "The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under *618our system of criminal justice.” Estelle v Williams, 425 US 501, 503; 96 S Ct 1691; 48 L Ed 2d 126 (1976). It is axiomatic that in any criminal case a defendant is presumed innocent until proven guilty. People v Kayne, 286 Mich 571, 576; 282 NW 248 (1938). The importance of the presumption of innocence has been characterized as "that bedrock 'axiomatic and elementary’ principle whose 'enforcement lies at the foundation of the administration of our criminal law.’ ” In re Winship, 397 US 358, 363; 90 S Ct 1068; 25 L Ed 2d 368 (1970) (quoting Coffin v United States, 156 US 432, 453; 15 S Ct 394; 39 L Ed 481 [1895]).
An error that infringes upon the presumption of innocence deprives the criminal defendant of a fair trial and is therefore a due process violation. Taylor v Kentucky, 436 US 478, 479; 98 S Ct 1930; 56 L Ed 2d 468 (1978).
While the presumption of innocence regarding the crime of armed robbery no longer exists after a valid conviction has been obtained, see People v Rowell, 14 Mich App 190, 196; 165 NW2d 423 (1968), the presumption continues to exist regarding the reversed felony-murder charge because it was not validly obtained. Allowing knowledge of the fact of the first jury’s finding of guilt with regard to armed robbery would unfairly prejudice the second jury’s ability to presume the defendant innocent of felony murder. It is not reasonable to expect a jury to presume innocence with respect to the remaining elements, despite cautionary instructions, in the face of being told another jury determined the defendant had in fact committed the armed robbery.
In Sandstrom v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979), the Supreme Court ruled that a jury instruction interfered with the presumption of innocence because it could have *619been interpreted to conclusively establish an essential element and was therefore a violation of the criminal defendant’s due process rights.7
In State v Johnson, 134 NH 498; 594 A2d 1288 (1991), the defendant was charged in a first trial with the unlawful operation of a motor vehicle after his license had been revoked. The defendant testified that he let a friend use his car on the day in question. A police officer testified that he knew the defendant and recognized him. The car was abandoned after a chase and the driver had fled. The jury found the defendant guilty, and the defendant was subsequently charged with perjury on the basis of his testimony at trial.
Similar to the case presently before this Court, the prosecutor in Johnson moved that the doctrine of collateral estoppel be applied to the effect that the jury would be instructed that the conviction of operating the motor vehicle was conclusive proof of the truth element of the perjury crime — that the defendant, and not a friend, was operating the vehicle.
As is the case under Michigan law, the New. Hampshire Supreme Court observed that it has never allowed the application of collateral estoppel to affirmatively establish an essential fact against a defendant in a criminal prosecution. Id., p 501.8 *621The court concluded that the defendant’s due process right to have a jury determine every element of the crime charged outweighed the state’s argument for judicial economy. Id., p 504.
Similarly, the prosecution in this case asserts vague arguments for judicial economy and efficiency that do not outweigh the potential for eroding the presumption of innocence on the remaining elements inherent in establishing one element of a crime where both the prior conviction and the subsequent prosecution arise from the same nucleus of facts.9
Knowledge of a prior conviction of the underlying felony, coupled with an instruction that the conviction conclusively establishes that the defendant committed that act, will almost inevitably taint the jury’s view of whether the defendant committed the remaining acts necessary for conviction of felony murder. The jury determination *622of guilt on all elements of a crime cannot be seen as a mechanistic, formulaic calculation. Each element is not determined independent of the other necessary factual determinations, nor should it be. The whole may not equal the sum of the parts. The collective, deliberative determination of one fact likely influences the consideration and resolution of others. The presence or absence of one element of a crime may change the way a jury approaches a case. The risk is simply too high that the jury will not presume innocence once it is informed of the determination of guilt of the armed robbery.
Mallett, J., concurred with Brickley, J.See the dissenting opinion, pp 629-630 for the text of the United States Constitution.
US Const, Am XIV, and Const 1963, art 1, § 17.
MCL 750.316; MSA 28.548.
Applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).
MCL 750.316; MSA 28.548 provides in pertinent part:
Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.
CJI2d 16.4 suggests the following instruction be given to the jury where first-degree felony murder is charged:
(1) The defendant is charged with first-degree felony murder. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant caused the death of [name deceased], that is, that [name deceased] died as a result of [state alleged act causing death],
(3) Second, that the defendant had one of these three states . of mind: [he/she] intended to kill, or [he/she] intended to do great bodily harm to [name deceased], or [he/she] knowingly created a very high risk of death or great bodily harm knowing that death or such harm was the likely result of [his/her] actions.
(4) Third, that when [he/she] did the act that caused the death of [name deceased], the defendant was committing [(or) attempting to commit/ (or) helping someone else commit] the crime of [state felony]. For the crime of [state felony], the prosecutor must prove each of the following elements beyond a reasonable doubt: [state elements of felony].
*615[(5) Fourth, that the killing was not justified, excused, or done under circumstances that reduce it to a lesser crime.]
[Use (6) or (7) where factually appropriate:]
(6) To establish an attempt the prosecutor must prove beyond a reasonable doubt that the defendant intended to commit the crime of [state felony] and that [he/she] took some action toward committing that crime, but failed to complete it. It is not enough to prove that the defendant made preparations for committing the crime. Things like planning the crime or arranging how it will be committed are just preparations; they do not qualify as an attempt. In order to qualify as an attempt, the action must go beyond mere preparation to the point where the crime would have been completed if it hadn’t been interrupted by outside circumstances. To qualify as an attempt, the act must clearly and directly be related to the crime of [state felony] and not some other objective.
(7) The defendant must have been either committing or helping someone else commit the crime of [state felony]. To help means to perform acts or give encouragement, before or during the commission of the crime, that aids or assists in its commission. At the time of giving aid or encouragement, the defendant must have intended the commission of the [state felony].
In responding to the view that collateral estoppel applied against a criminal defendant constitutes a violation of the Sixth Amendment right to a jury, and the analogy to the prohibition against granting a directed verdict to the prosecution, it has been observed that "[a] critical [distinction] ... is that, when collateral estoppel is applied, the defendant has already had a jury hear, examine and sift the testimony of the witnesses during the prior trial. The truth of a particular fact has been established.” State v Ingenito, 87 NJ 204, 226; 432 A2d 912 (1981) (Schreiber, J., concurring).
This Court adopted Sandstrom’s due process analysis in reference to our state constitution equivalent to the federal Due Process Clause, Const 1963, art 1, § 17. People v Wright, 408 Mich 1, 22; 289 NW2d 1 (1980).
Much of the foreign authority relied on by the prosecutor and the dissent in the case presently before this Court is distinguishable in that it addresses situations in which the issue precluded is a determination of the "status” of the defendant, such as alien citizenship or paternity. See United States v Bejar-Matrecios, 618 F2d 81 (CA 9, 1980); Hernandez-Uribe v United States, 515 F2d 20 (CA 8, 1975); Pena-Cabanillas v United States, 394 F2d 785 (CA 9, 1968); United States v Rangel-Perez, 179 F Supp 619 (SD Cal, 1959); People v Mojado, 22 Cal App 2d 323; 70 P2d 1015 (1937); Commonwealth v Ellis, 160 Mass 165; 35 NE 773 (1893); State v Braskett, 10 Ohio Op 2d 497, 499; 162 NE2d 922 (1959).
*620In Carmody v Seventh Judicial Dist Court, 81 Nev 83; 398 P2d 706 (1965), the defendant brought a res judicata or double jeopardy claim, arguing that in entering a guilty plea for assault, the subsequent prosecution for murder after the victim died was barred. Any statements contained in that opinion about the use of the plea as res judicata against the defendant was dicta, as is the case in United States v Colacurcio, 514 F2d 1, 6 (CA 9, 1975) (see dissenting opinion, p 7, n 13). State v Sargood, 80 Vt 412; 68 A 51 (1907), involved an evidentiary ruling regarding the admissibility of a prior criminal conviction for poisoning animals in order to show motive and purpose in a subsequent prosecution for attempting to poison two people. Id. This case is also distinguishable in that the conclusive use of the prior conviction to prove the defendant did poison animals at one time as evidence of motive and purpose was not used to conclusively establish any essential element of the prosecution for attempting to poison people.
The early Massachusetts case of Commonwealth v Evans, 101 Mass 25 (1869), closely parallels the prosecutor’s request considered by this Court today. In Evans, the defendant was tried and convicted of assault. When the victim died, charges of manslaughter were brought. In the second trial, the judge instructed the jury that the prior assault conviction was conclusive evidence that the defendant’s use of the knife was unjustifiable. While collateral estoppel was not applied to establish any essential elements of the charge, it was applied to bar relitigation of the self-defense theory argued by the defendant in the first trial. The broadly sweeping language used by the court is devoid of constitutional analysis, but suggests it would have upheld the prosecutor’s request in this case:
Upon general principles, the parties being the same, the former judgment must be held to have established all facts which were involved in the issue then tried, and essential to the judgment rendered upon it. [Id., p 27.]
My research of contemporary Massachusetts law did not uncover any criminal cases with similar facts in which the doctrine of collateral estoppel was invoked to bar relitigation of essential elements by a defendant. It is clear that a party to a civil action may invoke collateral estoppel to preclude further litigation regarding issues decided by a criminal conviction. Aetna Casualty & Surety Co v Niziolek, 395 Mass 737; 481 NE2d 1356 (1985). It has also been held in Commonwealth v 707 Main Corp, 371 Mass 374; 357 NE2d 753 (1976), that a determination in a civil lawsuit that a film was not obscene did not bar the relitigation of whether the film was obscene in the criminal prosecution for dissemination of obscene matter.
People v Ford, 65 Cal 2d 41; 52 Cal Rptr 228; 416 P2d 132 (1966), is the only recent authority on point that has allowed collateral estoppel in a subsequent prosecution arising out of the same transaction. Given its subsequent history, addressed by the lead opinion, ante, pp 608-609, it is of questionable viability. Like Evans, supra, Ford was decided before Ashe v Swenson, supra, and Simpson v Florida, 403 US 384; 91 S Ct 1801; 29 L Ed 2d 549 (1971) (because mutuality is not *621present in the collateral estoppel provided for by the Fifth and Fourteenth Amendments, the prosecution cannot rely on a reversed conviction as a basis for collateral estoppel to counter the defendant’s assertion that the government may not bring a third charge after the first conviction was reversed and an acquittal was obtained in the second trial). Neither Ford nor Evans addresses the constitutional issues raised today.
Similarly, the early English cases cited by the dissent, King v Matthews, 5 Price 202 (1797), and Attorney General v Wakefield, 5 Price 202, 203 (1797), were not followed by the English court in Attorney General v King, 5 Price 195, 202, n *; 146 Eng Rep 579, 582, n 2 (Ex Div, 1817). "Neither Matthews nor Wakeñeld appears to have been noticed by any other English court. It is commonly recognized that until 1974, there was still no direct English authority regarding the question whether issue estoppel applies in criminal proceedings.” United States v Pelullo, 14 F3d 881, 894, n 6 (CA 3, 1994). The 1974 case allowing collateral estoppel to be applied against a criminal defendant, R v Hogan, 59 Crim App 174, 183 (1973), was overruled by the House of Lords. Director of Public Prosecutions v Humphrys, 62 Crim App 1 (1975).
The dissenting opinion maintains that because the prosecution must prove malice upon retrial (the instruction the first jury did not receive), the jury would not be precluded from hearing evidence of the underlying facts of the felony. Post, p 637. If, as I suspect, the underlying facts of the felony must be explored to establish the necessary malice, where is the judicial economy?