Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/43

ALITO, J., dissenting

(Second) of Judgments §33, at 332.

It is true that we have been cautious about applying the doctrine of issue preclusion in criminal proceedings. See e.g., Currier v. Virginia, 585 U. S. ___, ___ (2018) (slip op., at 9); Bravo-Fernandez v. United States, 580 U. S. ___, ___ (2016) (slip op., at 4). But we have never adopted the blanket prohibition that Herrera advances. Instead, we have said that preclusion doctrines should have “guarded application.” Id., at ___ (slip op., at 4).

We employ such caution because preclusion rests on “an underlying confidence that the result achieved in the initial litigation was substantially correct,” and that confidence, in turn, is bolstered by the availability of appellate review. Standefer v. United States, 447 U. S. 10, 23, n. 18 (1980); see also Restatement (Second) of Judgments §28, Comment a, at 274. In Currier and Bravo-Fernandez, we were reluctant to apply issue preclusion, not because the subsequent trial was criminal, but because the initial trial was. While a defense verdict in a criminal trial is generally not subject to testing on appeal, summary judgment in a civil declaratory judgment action can be appealed. Indeed, the Crow Tribe did appeal the District Court’s decision to the Tenth Circuit and petitioned for our review of the Tenth Circuit’s decision. The concerns that we articulated in Currier and Bravo-Fernandez have no bearing here.^[1]

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For these reasons, Herrera is precluded by the judgment

1. Nor is that the only distinction between those cases and this one. In both Currier and Bravo-Fernandez a party sought preclusion as to an element of the charged offense. The elements of the charged offense are not disputed here—Herrera’s asserted treaty right is an affirmative defense. And while the State bears the burden of proof as to elements of the offense, under Wyoming law, the defendant asserting an affirmative defense must state a prima facie case before any burden shifts to the State. See Duckett v. State, 966 P. 2d 941, 948 (Wyo. 1998).