Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get its Story Straight

Posted: 23 Mar 2002

See all articles by Anne Poulin

Anne Poulin

Villanova University School of Law

Abstract

Prosecutors sometimes exploit ambiguity in the evidence of a crime and assert inconsistent factual positions to different fact finders in severed trials. For example, evidence from a robbery/homicide may implicate two defendants, but not conclusively prove which one fired the single fatal bullet; in that situation, the prosecutor may argue to separate juries that each robbery defendant was the trigger man and, as the shooter of the fatal bullet, deserves the death penalty. Making these inconsistent arguments, the prosecutor may achieve success in both cases. This prosecutorial inconsistency undermines the fairness of the judicial process and may violate the due process rights of one or both of the defendants.

Prosecutorial inconsistency can arise when two alleged participants in the same crime are tried separately or when a single defendant is retried for the same offense. Traditional tools for discouraging or preventing the government from asserting inconsistent positions in criminal trials are inadequate. Admitting prior inconsistent statements by the government as party admissions highlights the inconsistency for the fact finder, but does not prevent the prosecution from asserting the inconsistent position. Courts do not generally treat assertions by the government in previous trials as binding admissions. Collateral estoppel operates in criminal proceedings only when mutuality of parties is present and a particular issue on which to preclude religitation can be identified.

A modified judicial estoppel is the most promising tool available to the criminal defendant to prevent prosecutorial inconsistency. The doctrine bars a party from asserting a position in one proceeding that is inconsistent with a position it successfully asserted in a prior proceeding. To be effective in the criminal context, however, limitations commonly imposed on the doctrine need to be relaxed. First, instead of requiring the court to have formally "accepted" the prior asserted position as a condition for estoppel in the later proceeding, success for the government consistent with its asserted position should be sufficient. Second, bad faith should not be a condition for judicial estoppel to operate, because corruption of the judicial process, not prosecutorial misconduct, is at issue. Properly applied, judicial estoppel also protects the government's interests. The prosecution can avoid a bar of a later inconsistent assertion by showing that its initial assertion was at an early stage of the proceeding when the evidence was not fully developed, that new evidence has come to light between the two proceedings or that the prior inconsistent position was rejected by the previous fact finder.

Defendants convicted as a result of prosecutorial inconsistency should be afforded relief under their constitutional rights to due process. Although sounding in both improper argument and presentation of false testimony, false testimony provides the appropriate framework for evaluating due process violations from prosecutorial inconsistency. The first or second defendant should be entitled to relief if there is any reasonable likelihood that the prosecutorial inconsistency influenced the outcome of the case and there is no acceptable explanation for the change.

Suggested Citation

Poulin, Anne, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get its Story Straight. California Law Review, Vol. 89, October 2001. Available at SSRN: https://ssrn.com/abstract=304340

Anne Poulin (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States
610-519-7082 (Phone)
610-519-6282 (Fax)

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