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Whitacre Partnership v. Biosignia2/6/2004
tion in specific factual contexts." Id.; cf. Zurich Ins. Co., 667 F.2d at 1167 (stating that although judicial acceptance of a party's prior position is not an absolute prerequisite for judicial estoppel, it is "obviously more appropriate" in that situation). Finally, the Court noted that "judicial estoppel `is an equitable doctrine invoked by a court at its discretion.'" Id. at 750, 149 L.Ed. 2d at 978 (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990), cert. denied, 501 U.S. 1260, 115 L.Ed. 2d 1078 (1991)). Thus, "it may be appropriate to resist application of judicial estoppel `when a party's prior position was based on inadvertence or mistake.'" Id. at 753, 149 L.Ed. 2d at 979-80 (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir. 1995)).
We are persuaded that New Hampshire v. Maine best characterizes our common law doctrine of judicial estoppel and thus follow the United States Supreme Court's doctrinal formulation without hesitation. With a view toward providing appropriate guidance to our trial courts in their application of judicial estoppel, however, we pause to observe two important limitations on our holding.
As an initial matter, our recognition of judicial estoppel is limited to civil proceedings. New Hampshire v. Maine did not squarely address the applicability of the doctrine in the criminal context, and we believe public policy considerations militate against extending the doctrine to that arena. We address this issue from two standpoints: (1) whether judicial estoppel may be applied against a criminal defendant and (2) whether judicial estoppel may be applied against the government in a criminal case.
First, judicial estoppel should not ordinarily be applied against a criminal defendant. Although the United States Supreme Court did cite three criminal cases in New Hampshire v. Maine, the Court took no express position on the applicability of judicial estoppel to criminal proceedings, and in none of these cases was judicial estoppel actually applied against a defendant. See Russell, 893 F.2d 1033; Hook, 195 F.3d 299; McCaskey, 9 F.3d 368. Moreover, in only one of those cases was judicial estoppel applied at all. See Russell, 893 F.2d 1033 (applying judicial estoppel against the state). It appears that " he Supreme Court in New Hampshire was . . . simply collecting cases in which judicial estoppel was discussed, not where it was applied." Beem v. McKune, 317 F.3d 1175, 1193 (10th Cir. 2003) (McKay, J., dissenting), cert. denied, ___ U.S. ___, 157 L.Ed. 2d 24 (2003). Hence, New Hampshire leaves unresolved the question of the applicability of judicial estoppel in the criminal context.
The policies undergirding judicial estoppel must sometimes yield to countervailing policy concerns. As the Ninth Circuit has noted, given the high stakes of criminal prosecutions and the special protections traditionally afforded criminal defendants, " ustice would not be served by holding [a criminal] defendant to [his or her] prior false statements, because to do so would assign a higher value to the `sanctity of the oath' than to the guilt or innocence of the accused." Morris v. California, 966 F.2d 448, 453 (9th Cir. 1992), cert. denied, 506 U.S. 831, 121 L.Ed. 2d 57 (1992). It is not surprising, then, that " o circuit has ever applied the doctrine of judicial estoppel to bar a criminal defendant from asserting a claim based on innocence." Id. In light of these concerns, we agree with the Ninth Circuit's conclusion that " he judicial process can more easily survive a rule that precludes the use of judicial estoppel to keep intact convictions of innocent persons than it can a rule that purports to preserve judicial sacrosanctity by
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