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Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight |
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Anne Bowen Poulin |
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| In a surprisingly large number of criminal cases, the prosecution advances inconsistent positions on a common set of facts in separate proceedings. For example, in a number of cases where two defendants were charged with capital murder and the victim died as a result of a single gun shot, the prosecution has argued in separate proceedings that each of the two defendants fired the fatal shot. The prosecution not only argued for conviction on the basis that the particular defendant on trial shot the vic-tim, but also, the prosecution argued for the death sentence, emphasizing the defendant’s role as the shooter. Using these inconsistent arguments, the prosecution obtained convictions and death sentences for both defen-dants. Unfortunately, the law has no defined response to this problem. This Article argues that the prosecution should be prohibited from exploiting inconsistent positions in separate proceedings, suggesting that prosecutorial inconsistency violates the defendant’s right to due process. The Article explores approaches to controlling such prosecutorial incon-sistency and suggests adapting the law of party admissions, collateral es-toppel and judicial estoppel to preclude the prosecution from advancing such inconsistent positions. Finally, the Article details the due process analysis the courts should apply when the inconsistency is discovered after conviction, providing relief to defendants unless the prosecution can dem-onstrate that there is no reasonable possibility that the inconsistent posi-tion influenced the outcome. |
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Copyright
© 2001 by California Law Review, Inc. |
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