Citation

Poulin AB. Calif. Law Rev. 2001; 89(5): 1423-1478.

Copyright

(Copyright © 2001, School of Jurisprudence of the University of California)

DOI

unavailable

PMID

unavailable

Abstract

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 victim, 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 defendants. 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 inconsistency and suggests adapting the law of party admissions, collateral estoppel 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 demonstrate that there is no reasonable possibility that the inconsistent position influenced the outcome.