(dissenting). In this case, we must decide whether the doctrine of res judicata or collateral estoppel (preclusion)1 bars defendant from relitigating, and relieves the prosecution from reproving, the felony of armed robbery at his retrial for first-degree felony murder where defendant’s conviction for armed robbery was affirmed on appeal. Because I believe res judicata or collateral estoppel bars relitigation of the armed-robbery conviction, I dissent from the lead and concurring opinions. Moreover, I am persuaded that defendant was afforded his constitutional rights during his armed-robbery trial and, despite the use of this conviction on retrial, will again be afforded all his constitutional rights.
i
Before reaching the merits of this question, it is *623necessary to distinguish between merely using a prior conviction as evidence to prove an element of a crime and using a conviction as conclusive proof of one element of a crime as presented in this case. In the former, the Michigan Rules of Evidence2 would raise the initial barrier to entry, with possible constitutional infringements raising secondary concerns. On the other hand, the latter requires an analysis of whether collateral estoppel or res judicata is appropriate in a criminal case, as well as whether applying it against a defendant is constitutionally permissible. In this case, we are only presented with the latter, and, accordingly, I limit my discussion to these questions.
ii
A. RES JUDICATA/COLLATERAL ESTOPPEL IN CRIMINAL CASES
The application of res judicata and collateral estoppel principles in criminal law is well estab*624lished in the United States and has been applied both to the benefit of the defendant and the prosecution. When applied to the benefit of a defendant, it is primarily used to protect a defendant’s double jeopardy right against further prosecution3 or to estop the relitigation of various motions decided in the defendant’s favor.4 Similarly, when used by the prosecution against a defendant, courts have used it to preclude relitigation of pretrial evidentiary/suppression motions5 or similar factual issues at trial,6 as well as to preclude the relitigation of certain facts previously adjudicated that are later essential elements in a criminal prosecution.7
*625Indeed, Professor Allan D. Vestal, the leading scholar with respect to res judicata and collateral estoppel,8 espouses its application both against the prosecution and the defendant. See Vestal, Issue preclusion and criminal prosecutions, 65 Iowa L R 281, 312, 319-321 (1980). While conceding that use of these doctrines against a defendant does not often arise,9 Professor Vestal contends that it is appropriately within the power of the courts10 to apply it against a defendant, especially when the "defendant was aiforded the opportunity to exercise constitutional rights at the first trial” — "the *626defendant has had a day in court and the fact has been adjudicated against him.”11 Id. at 314, 312.
Moreover, Professor Vestal is not alone in his interpretation.12 Indeed, before the United States Constitution was ratified, English courts contemplated its use both for and against the defendant in a criminal trial. See comments, The use of collateral estoppel against the accused, 69 Colum L R 515, 523 (1969). In Rex v Duchess of Kingston, 20 Howell St Tr 355, 542 (1776), the court declared:
[I]f the rule of evidence must be, as it is often declared to be, reciprocal; and that in all cases, in which sentences favourable to the prisoner, are to be admitted as conclusive evidence for him; the sentences, if unfavourable to the prisoner, are in like manner conclusive evidence against him ....
However, unlike the instant case in which the prior proceeding was tried by a jury, the court questioned its application if the prior proceeding was tried by a judge and not a jury. Id. See also comments, supra at 523, n 63.
Subsequently, and shortly after ratification of the United States Constitution, two other English courts adhered to this view, holding that a prior decision in a condemnation proceeding was conclu*627sive evidence against the defendant in a later criminal proceeding. King v Matthews, 5 Price 202 (1797) (condemnation of a boat as found in a prior condemnation proceeding is "conclusive evidence of the defendant’s having broken the condition of his bond”); Attorney General v Wakefield, 5 Price 202, 203 (1797) ("the record of condemnation was conclusive evidence of the seized paper being liable to duty, and that it had been sent out from the defendant’s mill before the officer had taken an account of it, as was stated in the record of condemnation”).
Following the lead of the English common law, the early American courts likewise applied the doctrines of collateral estoppel and res judicata against criminal defendants, even when its use precluded the relitigation of essential elements of a crime. See, e.g., Commonwealth v Evans, 101 Mass 25, 27 (1869); Commonwealth v Ellis, 160 Mass 165; 35 NE 773 (1893).13
*628Indeed, more recently, in a case addressing the exact issue as in the case at bar, the California Supreme Court held that in a retrial for felony murder, the prosecution could gain the benefit of prior convictions for various felonies affirmed on appeal and could use them to satisfy the predicate felony element of felony murder:
It is obvious that the felony convictions obtained at the first trial substantially affected the prosecution and defense upon retrial of the murder charge. The burden upon the prosecution was lessened to the extent that it was permitted the benefit of the felony-murder rule without the necessity of having to prove the elements of the respective felonies. Nor was the defense permitted to dispute the fact that the necessary elements of the felonies had been conclusively found. These facts do not, however, compel the conclusion urged upon us by defendant.
The doctrine of res judicata applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined though the offenses be different. Thus where a defendant is tried on multiple counts of a single information, each count being considered as a separate and distinct offense, the doctrine of res judicata operates to preclude the relitigation of issues finally determined upon retrial of only one count. It follows that the doctrine of res judicata justifies instructions, where relevant, that a defendant has been found guilty of crimes finally adjudicated which are charged as elements in another charge or charges then in the process of being retried. Accordingly, it was not error for the trial court to give appropriate instructions that defen*629dant had been convicted of the various felonies, and that if they found that defendant’s commission of such felonies was conjoined with his commission of the homicide, they might predicate their verdict on the felony-murder rule articulated in Penal Code, section 189. [People v Ford, 65 Cal 2d 41, 50-51; 52 Cal Rptr 228; 416 P2d 132 (1966). Citations omitted.]
Accordingly, from a review of the case law, it is clear that a significant number of courts and commentators have found the doctrines sound and applicable against a criminal defendant.
B. CONSTITUTIONAL IMPLICATIONS
Despite this well-established precedent applicable to criminal cases, the lead opinion contends that these decisions fail to fully afford a defendant his constitutional rights. While admitting that defendant was given his day in court for the armed robbery, the lead opinion maintains that his retrial for felony murder is a separate and distinct crime thereby making his conviction for armed robbery inapplicable as conclusive proof of the predicate felony for felony murder. In essence, the lead opinion argues that this violates a defendant’s right to trial by jury, as well as infringing on his due process rights to a presumption of innocence and proof beyond a reasonable doubt. I disagree.
1. JURY TRIAL
The Sixth Amendment of the United States Constitution provides in relevant part:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an *630impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law .... [Emphasis added.]
As explained on many occasions by the United States Supreme Court, its primary purpose was to "prevent oppression by the Government.” Duncan v Louisiana, 391 US 145, 155; 88 S Ct 1444; 20 L Ed 2d 491 (1968):
Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the commonsense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. [Id. at 156.][14]
Hence, to fulfil this purpose, the right to a jury *631trial is applicable in all cases "triable by jury at the common law, and with all the common-law incidents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused.” 1 Cooley, Constitutional Limitations (8th ed), pp 668-673. Against this backdrop, I review first whether the common law permitted the use of preclusion against a criminal defendant at the time the right to a jury trial was ratified.
A review of the English common law at the time of ratification indicates that at least one court contemplated the use of estoppel principles against a defendant as long as he had a jury trial in the former prosecution. See Duchess of Kingston, and comments, supra. Moreover, shortly after ratification, two more English courts applied the doctrines of preclusion against a criminal defendant. See Matthews and Wakeñeld, supra. Accordingly, contrary to the. lead opinion’s contention, it cannot be said that use of preclusion against a criminal defendant is void in constitutional history. Instead, what can be gleaned from the history of the common law is a recognition of the existence of this procedure at the time of ratification. Indeed, the lack of numerous cases on this subject is not surprising in light of the unique factual setting required for its use, e.g., retrial of one count in a multiple-count information.
Nonetheless, while use of preclusion against a defendant at common law may not be dispositive evidence that it does not violate the right to a jury trial, it is helpful in understanding the right. Indeed, when considering its use at common law in light of the general purpose behind the Sixth Amendment’s right to a jury trial, it is evident that its application against a criminal defendant is generally valid and constitutionally permissible.
As applied to the instant case, I find it both *632realistic and rational15 to preclude defendant from relitigating his armed-robbery conviction at his retrial for felony murder. Defendant unquestionably had a constitutionally valid jury trial with respect to. the armed-robbery conviction and, on retrial for felony murder, will have a constitutionally valid jury trial. Moreover, defendant’s conviction for armed robbery cannot be said to be the result of government oppression by either the judge or the prosecutor — a jury, as opposed to a judge or an overzealous prosecutor, found him guilty beyond a reasonable doubt of armed robbery.
Furthermore, while armed robbery and felony murder are separate and distinct crimes, the predicate felony used to justify a charge of felony murder in this case, i.e., armed robbery, is not separate and distinct from the felony of armed robbery, of which defendant stands convicted. Indeed, the elements were the same in defendant’s first trial and will be the same on retrial. Hence, after having this issue conclusively determined by a jury, it cannot be relitigated at defendant’s felony-murder trial.
Nevertheless, by relying on case law addressing inconsistent verdicts, the lead opinion attempts to illustrate that the separateness of the crimes somehow permits the jury to consider the armed-robbery conviction anew in this retrial for felony murder. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982); United States v Powell, 469 US 57; 105 S Ct 471; 83 L Ed 2d 461 (1984). However, a close review of the case law cited by the lead opinion *633clearly indicates that this analogy is inapposite. Neither Lewis nor Powell stands for the proposition that a felony, i.e., armed robbery, must be considered anew every time it is combined in a compound offense such as felony murder. Instead, Lewis simply held that this Court would not review inconsistent verdicts, primarily because of possible jury lenity. Id. at 450-453. Similarly, the United States Supreme Court, under its supervisory powers over the federal courts, held:
Given . . . the Government’s inability to invoke review [i.e., after an acquittal, double jeopardy protections prevent the government from seeking review or a new trial], the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity, . . . the best course to take is simply to insulate jury verdicts from review on this ground. [Powell, supra at 68-69.]
Therefore, the lead opinion’s analogy is clearly not appropriate and does not support the reconsideration of the armed-robbery conviction in this case.
Indeed, when following the lead opinion’s analogy to its necessary conclusion, it becomes clear that its attempted application to this case would manipulate these precedents from simply a power of jury nullification to a right to render inconsistent verdicts. However, as Judge Friendly so clearly stated in United States v Kerley, 838 F2d 932, 938 (CA 7, 1988), courts have consistently held that the jury merely
has the power to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury. But jury nullification is just a power, not also a right, United States v Anderson, 716 F2d 446, 449-450 (CA 7, 1983); United States v Dougherty [154 US App DC 76, 100] 473 F2d 1113, 1137 (1972); Devlin, The Judge, 117-148 *634(1979) .... [See Lewis, supra at 449; Powell, supra at 66.]
In essence, the lead opinion fails to recognize that we simply do not have an inconsistent verdict problem in this case and accordingly do not have the problem of trying to explain the verdict. Instead, we have a clear and affirmative message from the jury, guilty of armed robbery. It is the use of this message that I would give conclusive effect to in defendant’s retrial for felony murder.16
Moreover, I disagree that foreclosing the relitigation of the armed-robbery conviction in defendant’s retrial for felony murder would be the equivalent of directing a verdict of guilty against defendant, thereby interfering with the role of the jury and violating Sullivan v Louisiana, 508 US _; 113 S Ct 2078, 2080; 124 L Ed 2d 182 (1993). Instead, I believe that the lead opinion misconstrues the clear distinction between the doctrines of preclusion and a directed verdict.
When preclusion is invoked, a court is respecting the previous jury decision and foreclosing repetitive and unnecessary litigation on the issue, i.e., once a party “has had a day in court and the *635fact has been adjudicated against him,” the issue is foreclosed. Vestal, supra at 312.
On the other hand, when directing a verdict, a trial judge is refusing to let any jury decide the issue, not because a previous jury has already decided the issue, but because as a matter of law no reasonable minds could disagree about the issue. In other words, a judge will grant a directed verdict when, on the evidence presented, no judgment could reasonably be rendered in favor of the nonmoving party. See Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), Rule 2.515, pp 228-229.
In the instant case, we are unquestionably addressing the doctrines of preclusion, not a directed verdict. Nonetheless, even if one disagreed with this distinction, use of preclusion in this case would still be consistent with the reasoning in Sullivan:
The right [to trial by jury] includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of "guilty.” . . . Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence. [113 S Ct 2080.]
In this case, a jury and not a judge has "reach[ed] the requisite finding of 'guilty’ ” on the armed-robbery charge. Therefore, the judge would not be directing a verdict for the prosecution in violation of Sullivan. Instead, the judge would be applying the doctrines of preclusion — a distinct concept from a directed verdict — on the basis of a previous jury decision on the merits, i.e., a conviction of armed robbery.
Further, contrary to the lead opinion’s concern, *636precluding defendant from relitigating the elements of armed robbery will not remove significant facts from the jury’s deliberative process or create a strong tendency toward a guilty verdict in violation of his right to a jury trial. Indeed, the application of statutory felony murder in Michigan refutes these concerns.
In People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), this Court distinguished between felony murder as it existed at common law and Michigan’s statutory felony-murder offense. There, we determined that "Michigan has no statutory felony-murder rule which allows the mental element of murder to be satisfied by proof of the intention to commit the underlying felony.”17 Id. at 733.
The Court reasoned that the statutory crime of felony murder18 "is merely a degree-raising device” with the commission of the underlying felony during the course of the murder raising the punishment to first-degree murder. See Aaron, supra at 719. Thus, in order to convict a defendant of felony murder, the jury must first find that he committed the murder, or in this case, aided and abetted the *637murder, "before the statute is applied to elevate the degree.” Id. at 721. Moreover, because defendant is charged with aiding and abetting a felony murder, the jury must begin by finding that defendant had the same intent as the principal19 by either harboring an "intent to kill, an intent to cause great bodily harm, or a wanton and willful disregard[20] of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm . . . .” Id. at 728-729.
With these requirements in mind, use of preclusion in this case will not remove significant facts from the jury’s deliberative process so as to interfere with the rule of the jury because
whenever a killing occurs in the perpetration or attempted perpetration of an inherently dangerous felony, ... in order to establish malice the jury may consider the "nature of the underlying felony and the circumstances surrounding its commission,” People v Fountain, 71 Mich App 491, 506; 248 NW2d 589 (1976). If the jury concludes that malice existed, they can find murder and, if they determine that the murder occurred in the perpetration or attempted perpetration of one of the enumerated felonies, by statute the murder will become first-degree murder. [Aaron, supra at 729-730.]
As applied in this case, the jury would not be relieved of finding malice and accordingly would not be precluded from hearing evidence of the underlying facts of the felony. Instead, the jury simply would be relieved from finding that all the elements of armed robbery are, satisfied. Indeed, *638when reviewing both the felony-murder statute21 and Aaron, it is clear that before finding the crime complete, a jury must make a temporal connection between the murder and the. felony by finding that the murder occurred in the course of the felony.22 Because the jury must make a separate and distinct finding of malice, as well as finding this temporal connection between the felony and the murder, the jury would not be deprived of the crucial underlying facts of the armed robbery.23
Moreover, because Aaron requires that the jury first find that a murder occurred before considering the existence of the underlying felony and because the malice required for murder is a separate mens rea from the intent attributable to the armed robbery, there would not be a tendency toward a guilty verdict in violation of the right to trial by jury. Certainly, if there was any sense of this tendency toward a guilty verdict, a proper limiting instruction reaffirming the jury’s role, the presumption of innocence, and the use of preclusion would cure any potential problem.
Accordingly, precluding defendant from relitigating his armed-robbery conviction during his retrial for felony murder would not infringe on his *639right to trial by jury. He had his day in court with respect to the armed-robbery conviction and had his right to a jury trial and will once again have his right to a jury trial with respect to felony murder.
2. DUE PROCESS
Aside from the claim of constitutional infringement of the right to a jury trial, both the lead and concurring opinions maintain that use of preclusion against defendant in this case would violate his due process rights to be presumed innocent and to have every element of a crime found beyond a reasonáble doubt. Again, I disagree.
In Estelle v Williams, 425 US 501, 503; 96 S Ct 1691; 48 L Ed 2d 126 (1976), the Court explained:
The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated:
"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v United States, 156 US 432, 453 [15 S Ct 394; 39 L Ed 481] (1895).
To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 US 358, 364 [90 S Ct 1068; 25 L Ed 2d 368] (1970).
Subsequently, in Taylor v Kentucky, 436 US 478, 483; 98 S Ct 1930; 56 L Ed 2d 468 (1978), the Supreme Court clarified the presumption of inno*640cence and proof beyond a reasonable doubt by recognizing that they are interrelated concepts. In doing so, the Court explained that the general protection afforded by these concepts is the "right of the accused to 'remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion . . . Id. at 484, n 12 (quoting 9 Wigmore, Evidence [3d ed], § 2511).
In the instant case, precluding defendant from relitigating his armed-robbery conviction would not infringe on these principles. Defendant was presumed innocent of the armed robbery until the prosecution effected its burden of persuasion beyond a reasonable doubt. Once the jury agreed and returned a verdict of guilty, this presumption of innocence disappeared.24 Accordingly, it cannot be said that the use of this conviction violated defendant’s due process right to be presumed innocent or that the prosecution did not meet its burden of proof beyond a reasonable doubt. Indeed, the conviction itself, along with its affirmation on appeal, forecloses these concerns.
Moreover, use of the armed-robbery conviction on retrial for felony murder will not negate or hinder defendant’s presumption of innocence, nor will it relieve the prosecution from proving felony murder beyond a reasonable doubt.25 Indeed, a *641standard instruction regarding both the presumption of innocence and proof beyond a reasonable doubt is certainly required and would protect these important rights.26 See Taylor, supra at 485-486. However, once this is done, the defendant has received all his constitutional rights.
Finally, even if not persuaded that cautionary instructions by themselves would adequately protect these important rights, the stricture of felony murder in Michigan with respect to the separate and distinct malice requirement put to rest any possible infringement of these constitutional rights. As indicated previously, Aaron makes clear that the jury must first find that a murder occurred before considering whether to raise the crime to first-degree murder. In doing so, the jury must find a separate and distinct mens rea apart from the intent to commit the armed robbery. Combining this finding with the intent required for aiding and abetting this murder, as well as a temporal finding that the murder occurred during the course of the felony, defendant will surely be afforded his due process rights to the presumption of innocence and proof beyond a reasonable doubt.27
hi
As the instant opinion indicates,, collateral estop*642pel and res judicata have often been applied offensively against a criminal defendant. As in civil litigation, it furthers the important policy of foreclosing repetitive litigation and unnecessarily using a court’s time. Indeed, it is consistent both with the expectation of the parties and the public —once a defendant received his day in court and was afforded all his constitutional rights, the litigation should cease and the defendant should have to live with the consequences. That is exactly what the doctrines of preclusion would accomplish in the instant case.
Indeed, use of preclusion against this criminal defendant clearly would not infringe on his constitutional rights to a jury trial, the presumption of innocence, or proof beyond a reasonable doubt. Defendant was afforded all these rights at his armed-robbery trial and will again be afforded all these rights at retrial for felony murder. Further, any additional concern that this procedure still might violate these constitutional rights is put to rest by the stricture of felony murder in Michigan. Accordingly, I would reverse the decision of the Court of Appeals and remand the case in accordance with the guidelines set forth herein.
Boyle and Griffin, JJ., concurred with Riley, J.Whether the instant case properly implicates the doctrine of res judicata or collateral estoppel is not dispositive in this case. Indeed, there is no question that the elements of either would be satisfied on the instant facts.
MRE 803(22) provides:
Evidence of a final judgment, entered after a trial or upon a plea of guilty (or upon a plea of nolo contendere if evidence of the plea is not excluded by MRE 410), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.
Further, assuming these requirements are met, a court then would likely consider MRE 403, which provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” However, these questions are not before this Court, and, accordingly, I do not address them. See also Vestal, Issue preclusion and criminal prosecutions, 65 Iowa L R 281, n 1 (1980).
See Ashe v Swenson, 397 US 436, 443; 90 S Ct 1189; 25 L Ed 2d 469 (1970).
See, e.g., People v Gray, 393 Mich 1, 4; 222 NW2d 515 (1974) (a prior determination of the issue of voluntariness of a confession is "binding on the people for all purposes under the doctrine of collateral estoppel”); United States ex. rel DiGiangiemo v Regan, 528 F2d 1262, 1265-1266 (CA 2, 1975) (due process requires application of collateral estoppel where the evidence was previously suppressed in a prior prosecution).
See, e.g., People v Mann, 89 Mich App 511, 513-514; 280 NW2d 577 (1979); People v Scott, 93 Misc 2d 1074; 405 NYS2d 169 (1978); United States v Malizia, 429 F Supp 492, 495 (SD NY, 1977). Cf. People v Gray, n 4 supra. See also Steele v United States, 267 US 505, 507; 45 S Ct 417; 69 L Ed 761 (1925).
See State v Brown, 201 SC 417, 423; 23 SE2d 381 (1942) (the value of property determined in a prior proceeding was binding on the defendant in a subsequent trial); State v Sargood, 80 Vt 412, 413-414; 68 A 51 (1907) (a conviction for poisoning colts in a prior prosecution operates as conclusive proof of the act of poisoning in a subsequent prosecution).
See, e.g., People v Ford, 65 Cal 2d 41, 50-51; 52 Cal Rptr 228; 416 P2d 132 (1966) (a prior conviction for numerous felonies is res judicata and conclusive proof of the predicate felony for felony murder); Commonwealth v Evans, 101 Mass 25, 27 (1869) (a conviction for assault before the death of the victim precludes relitigation of any justification for the crime, i.e., self-defense, in a subsequent prosecution for manslaughter of the same victim); Commonwealth v Ellis, 160 Mass 165; 35 NE 773 (1893) (a prior criminal adjudication of the issue of paternity precludes relitigation of the issue in a subsequent prosecution under the same statute for a later offense); United States v Colacurcio, 514 F2d 1, 6 (CA 9, 1975) (see n 13 for a parenthetical example); Carmody v Seventh Judicial Dist Court, 81 Nev 83, 85-86; *625398 P2d 706 (1965) (see n 13 for a parenthetical example); State v Braskett, 10 Ohio Op 2d 497, 499; 162 NE2d 922 (1959) (a determination of the element of paternity decided in a prior prosecution is binding on the defendant in a subsequent prosecution). See also n 13.
Professor Vestal is widely cited by courts, including the United States Supreme Court, restatements, and other scholarly articles. In a tribute to Professor Vestal, Justice Ruth Bader Ginsburg pronounced him "the giant in the field” of the prior adjudication doctrine. Ginsburg, The work of Professor Allan Delker Vestal, 70 Iowa L R 13, 14 (1984).
Vestal, supra at 314, 319-320.
When the state asserts issue preclusion against a criminal defendant, a discussion of double jeopardy or due process is inappropriate. Rather, the source of the state’s claim of issue preclusion must be the power of the courts to control judicial administration — that is, the courts’ power to administer justice. ' Admittedly, this has always been the ground for res judicata/ preclusion in civil cases; courts are now beginning to recognize the logic of its application in criminal cases as well. [Id. at 284.]
For example,
an individual might be charged with the distribution of pornographic materials on several different days with the distribution on each day being a separate offense. Assuming that the defendant can be tried on the various separate offenses in separate trials, if there is a conviction on the first charge-assuming the incentive to litigate the matter fully — a finding that the materials were pornographic should be binding in the subsequent prosecutions if identical materials are at issue. Logic and wise use of the time of the courts, attorneys, and litigants would indicate that relitigation of the question of the nature of the material should not be allowed. [Id. at 297.]
See also Vestal & Coughenour, Preclusion/res judicata variables: Criminal prosecutions, 19 Vand L R 683, 698-699 (1966):
[Claim preclusion against a criminal defendant is usually appropriate because] the defendant has had his day in court on the matter; he has had the incentive to litigate, and the issue has been determined against him. This does not deprive the defendant of anything, for preclusive effect can be given a judgment only after the court has made a final determination in the matter. [Id. at 699.]
See also comments, The use of collateral estoppel against the accused, 69 Colum L R 515, 523-524 (1969).
Indeed, courts have applied these doctrines of preclusion in many different factual settings, including in alienage cases, see United States v Rangel-Perez, 179 F Supp 619 (SD Cal, 1959); Pena-Cabanillas v United States, 394 F2d 785 (CA 9, 1968); United States v Bejar-Matrecios, 618 F2d 81 (CA 9, 1980); Hernandez-Uribe v United States, 515 F2d 20 (CA 8, 1975), murder trials, Carmody, n 7 supra at 85-86 ("Because of their conviction of robbery by reason of their pleas of guilty, under the doctrine of res judicata they may be precluded in the trial for murder from contending that they did not commit the robbery. Even so, no fundamental unfairness would result to petitioners in their trial for murder”), criminal tax cases, Colacurcio, n 7 supra at 6 (collateral estoppel is not just limited to status cases, i.e., whether a defendant is an alien, but applicable to a criminal tax case; the court, however, held that all the requirements for collateral estoppel were not met because the issue "was not a necessary element of the conviction in the prior case and was not 'distinctly put in issue and directly determined’ ”), criminal poisoning, Sargood, supra at 413-414 (see n 6 for a parenthetical example), and criminal child neglect cases, see Braskett, n 7 supra; People v Mojado, 22 Cal App 2d 323; 70 P2d 1015 (1937) (a former conviction for not supporting a minor child bars relitigation of paternity in a later prosecution); Ellis, n 7 supra.
The concurring opinion attempts to distinguish much of this precedent by noting that it only forecloses the relitigation of a defendant’s status. This is a distinction without a difference. The fact remains *628that preclusion is being applied against a criminal defendant with respect to an essential element of a crime. While this case would inform the jury of a prior conviction rather than just a defendant’s status, any fears that this would sway the jury toward a guilty verdict are allayed by a necessary limiting instruction and the unique stricture of felony murder in Michigan. See part ikb)(2).
The instant case does not question whether the jury can be impartial. If it did, a different inquiry would be required:
"Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” [Frazier v United States, 335 US 497, 511; 69 S Ct 201; 93 L Ed 187 (1948), quoting United States v Wood, 299 US 123, 145-146; 57 S Ct 177; 81 L Ed 78 (1936).]
[C]ollateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. [Ashe, n 3 supra at 444.]
Moreover, precluding the defendant from relitigating his armed-robbery conviction would not preclude the jury from rendering inconsistent verdicts in this case, or, more appropriately stated and consistent with the case law, would not make the possible existence of inconsistent verdicts in this case reviewable by this Court. The crime of felony murder is not complete until the jury finds that the murder occurred during the commission of the armed robbery, of which defendant already stands convicted. Indeed, because of this temporal element, it still would be appropriate to follow existing precedent and instruct the jury regarding second-degree murder as a lesser included offense of first-degree murder. See People v Aaron, 409 Mich 672, 725; 299 NW2d 304 (1980). In practice, this already occurs because the jury must first find second-degree murder and the malice attributable to the murder before deciding whether to enhance the crime to first-degree murder. Id. at 721. Moreover, while not binding on this Court, the Michigan Criminal Jury Instructions already structure the instructions in such a manner as to provide the jury with this possibility.
Although the circumstances surrounding the commission of the felony may evidence a greater intent beyond the intent to commit the felony, or a wanton and willful act in disregard of the possible consequence of death or serious injury, the intent to commit the felony, of itself, does not connote a "man-endangering-state-of-mind.” Hence, we do not believe that it constitutes a sufficient mens rea to establish the crime of murder. [Id. at 728.]
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. [MCL 750.316; MSA 28.548.]
People v Kelly, 423 Mich 261, 278-279; 378 NW2d 365 (1985).
This element is satisfied “if the aider and abettor participates in a crime with knowledge of his principal’s intent to kill or to cause great bodily harm . . . .” Kelly, supra at 278.
See n 18.
The Michigan Criminal Jury Instructions confirm this temporal element. See CJI 16:2:02.
Accordingly, the instant case is substantially different from Gutierrez v Superior Court, 24 Cal App 4th 153, 170; 29 Cal Rptr 2d 376 (1994), relied on by the lead opinion. There, the court expressed concern
whether, as a practical matter, the murder trial can be limited to the issue of causation and the jury instructed in the manner requested by the prosecution without causing prejudice to petitioner as to the issue actually to be decided by the jury in such a limited trial.
In the instant case, the stricture of felony murder in Michigan does not create such a limited trial and therefore does not deprive defendant of his constitutional rights.
See Herrera v Collins, 506 US _, _; 113 S Ct 853, 860; 122 L Ed 2d 203 (1993) ("Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears”).
The concurring opinion relies on Sandstrom v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979), for support in finding that use of preclusion would interfere with defendant’s presumption of innocence. However, Sandstrom is distinguishable for two reasons. First, the Sandstrom Court was reviewing an instruction that presumed the element of intent — an intent yet to be found by any jury beyond a reasonable doubt. In the instant case, a jury has found defendant guilty of armed robbery beyond a reasonable doubt. Second, *641the Sandstrom jury was not given a limiting instruction as would be done in this case. Therefore, unlike Sandstrom, use of preclusion would not violate defendant’s right to be presumed innocent.
The concurring opinion argues that the stricture of felony murder would actually undermine the use of preclusion in this case because it would not further judicial economy. I disagree. Indeed, it would further judicial economy because the jury will not have to spend time considering whether the felony occurred and certainly will not have to question whether defendant was present where the felony occurred, i.e., in the house. Eliminating these considerations, as well as the time encompassed by the attorneys in argument, certainly would further judicial economy.
See also text accompanying n 23.