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 VOLUME 11 - CHAPTER 257
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257.7 Judicial Estoppel -- Inconsistent Prosecution Positions

    257.7.1  Judicial Estoppel -- Inconsistent Prosecution Positions

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 VOLUME 11 - CHAPTER 257

PRACTICE NOTE: The Supreme Court has long emphasized the federal Constitution's "overriding concern with the justice of finding guilt." (United States v. Agurs (1976) 427 US 97, 112 [96 SCt 2392; 49 LEd2d 342].) In particular, the Due Process Clause guarantees for every defendant the right to a trial that comports with basic tenets of fundamental fairness. (Lassiter v. Department of Soc. Servs. (1981) 452 US 18, 24-25 [101 SCt 2153; 68 LEd2d 640]; see also Turner v. Louisiana (1965) 379 US 466, 471-72 [85 SCt 546; 13 LEd2d 424]; In re Murchison (1955) 349 US 133, 136 [75 SCt 623; 99 LEd2d 942].)  Judicial estoppel prevents a party from taking a contrary position "where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position." (New Hampshire v. Maine (2001) 532 US 742, 749 [121 SCt 1808; 149 LEd 2d 968 [internal quotation marks omitted].)

    "The prosecutor, as the agent of the people and the State, has the unique duty to ensure fundamentally fair trials by seeking not only to convict, but also to vindicate the truth and to administer justice." (Thompson v. Calderon (9th Cir. 1998) 120 F3d 1045, 1058; see also United States v. Cruz-Garcia (9th Cir. 2003) 344 F3d 951 [court found it "troubling" that the prosecutor argued that the witness was too dumb to deal drugs on his own when it had argued for the exclusion of evidence showing that the witness had done precisely that].) The Supreme Court recognized, over sixty years ago, that:

    Because the prosecutor is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer ..., it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate method to bring about one.

(Berger v. U.S. (1935) 295 US 78, 88 [55 SCt 629; 79 LEd2d 1314].)

    "From these bedrock principles, it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime." (Thompson, 120 F3d at 1058; see also Drake v. Kemp (11th Cir. 1985) 762 F2d 1449, 1470, concurring opn.)

Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 30:12 [discussing issue as judicial estoppel].

APPELLATE PRACTICE NOTE: See U.S. v. Morales (8th Cir. 1984) 737 F2d 761, 763 [because of inconsistent positions prosecution lost its right to appeal standing of defendant].