Litigators in the criminal justice system must be aware of and utilize the judicial estoppel doctrine to evaluate the long-term effect of advancing a particular argument or assuming a certain position in a case to avoid being hog-tied by that contention later in the proceedings. Similarly, litigators must also use the lens of the judicial estoppel doctrine to evaluate the ramifications down the road of opposing counsel’s argument or position in the litigation.
October 20, 2021 Criminal Justice Matters
Strategic Choices and the Judicial Estoppel Doctrine
J. Vincent Aprile II
What is the judicial estoppel doctrine?
“[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” New Hampshire v. Maine, 532 U.S. 742, 749–51 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)). “This rule, known as judicial estoppel, ‘generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.’” Id. at 751 (quoting Pegram v. Herdrich, 530 U.S. 211, 227, n.8 (2000)).
Several factors usually justify the decision to apply the judicial estoppel doctrine in a specific case. First, the subsequent position of the party must be “clearly inconsistent” with its earlier position. Second, did the party succeed in convincing a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled”? Without success in a prior proceeding, a party’s later inconsistent position creates no “risk of inconsistent court determinations” that threatens judicial integrity. Third, would the party advancing an inconsistent position obtain an unfair advantage or impose an unfair detriment on the opposing party if not estopped? See id. at 750–51.
Counsel needs to examine carefully the court’s oral and written rulings in these situations to extract language that supports the conclusion that the court was relying on what later will be catalogued as a contrary position.
Posit a pretrial evidentiary hearing where the defense has called an individual, such as the alleged victim, to testify to facts supporting a pretrial defense motion to dismiss. Assuming a strong adversary position, the prosecutor impeaches the alleged victim with a prior felony conviction and argues that the victim’s testimony should not be believed in the issue raised in the pretrial motion. The judge subsequently denies the defense motion and, in the ruling, relies heavily on the lack of the alleged victim’s credibility.
As the case goes forward, defense counsel moves to bar the prosecutor from calling the alleged victim as a witness due to the prosecutor’s earlier challenge to the alleged victim’s credibility.
In this scenario, the prosecutor’s impeachment by a prior felony conviction, which inherently asserts the witness is never to be believed under oath, is totally inconsistent with the prosecution’s second position—calling the victim as a reliable witness to provide testimony that the defendant committed the crime being prosecuted.
The second factor is whether the prosecutor succeeded in persuading the court to accept the party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that the court was misled by either the party’s first position or its second position. The prosecution, using its impeachment of the alleged victim by a prior felony conviction, convinced the court to find the victim’s testimony lacking in credibility, resulting in the court denying the defense motion. There is no doubt that the prosecution succeeded in persuading the court to accept its position that the alleged victim was not believable under oath because of that felony conviction.
The third factor is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. The prosecution’s impeachment of the victim due to the status of being a convicted felon resulted in the court denying the defense motion to dismiss, but the prosecution will now present that witness to the jury as a credible, reliable witness in an effort to prove the charges against the defendant.
The prosecution should not be able to put before a jury a witness whom the prosecution represented to the court as incapable of telling the truth on the witness stand under oath if the intention of the prosecution is to ask the jury or judge, as fact finder, to believe that witness’s testimony on the merits of the charges. And, if the prosecution believes that the alleged victim is a reliable, credible witness regarding the account of the charges against the defendant, then the prosecution intentionally misled the court by impeaching the victim on the basis of the prior felony convictions during the pretrial hearing,
While some forms of limited impeachment might not be capable of generating a judicial estoppel situation, impeachment by a prior felony conviction undermines a witness’s believability in every testimonial scenario. For example, had the prosecution impeached the witness during the evidentiary hearing with a prior inconsistent statement, that mode of impeachment may not be relevant to the witness’s testimony about the crime itself. However, impeachment by a prior felony conviction is a different means of impugning a witness’s credibility. “One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness.” Davis v. Alaska, 415 U.S. 308, 316 (1974).
In an effort to defeat the defense pretrial motion, the prosecution during the evidentiary hearing elected to impeach the alleged victim of all the charges by making a general attack on the witness’s credibility by eliciting that the witness had a prior felony conviction. If the prosecution is allowed to call the alleged victim as a witness at the defendant’s jury trial, the prosecution will be vouching for the alleged victim as a credible, believable witness. “The prosecutor should not offer evidence that the prosecutor does not reasonably believe to be true, whether by documents, tangible evidence, or the testimony of witnesses.” Am. Bar Ass’n, Standards for Criminal Justice: Prosecution and Defense Function (4th ed. 2015), The Prosecution Function, standard 3-6.6(a), Presentation of Evidence.
The prosecution’s presentation at trial of the alleged victim as a credible witness must be juxtaposed against the prosecution defeating in the same proceeding the defense motion by making a “general attack” on the alleged victim’s credibility, essentially telling the court that the witness should not ever be believed because of the proven prior felony conviction. And, if the prosecution believed that the alleged victim is a reliable, credible witness regarding the charges against the defendant, then the prosecution intentionally misled the court by impeaching the witness on the basis of prior felony convictions. These are contradictory positions.
Importantly, the defense, by taking contrary positions in certain litigation scenarios, can also violate the judicial estoppel doctrine. As a result, both the prosecution and defense need always to examine their own positions as well as opposing counsel’s positions to determine whether contrary positions are being asserted in a way that undermines the integrity of the judicial process. Judicial estoppel is an equitable principle intended to protect the integrity of the judicial process.
“Judicial estoppel is an equitable doctrine that preserves the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment.” Teledyne Indus., Inc. v. Nat’l Lab. Rel. Bd., 911 F.2d 1214, 1217–18 (6th Cir. 1990).
Prosecutors and defense counsel must appreciate the judicial estoppel doctrine and use its parameters to decide their own strategic moves as well as to determine the subsequent implications of opposing counsel’s positions that were accepted by the trial court as a basis for a favorable ruling.