Whitacre Partnership v. Biosignia2/6/2004
leaving wrongful convictions in place as a sanction for lying." Id.
Second, judicial estoppel should not ordinarily be applied against the government in a criminal proceeding. See, e.g., Thompson v. Calderon, 120 F.3d 1045, 1070 (9th Cir. 1997), rev'd and remanded on other grounds, 523 U.S. 538, 140 L.Ed. 2d 728 (1998); Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir. 1995); United States v. Kattar, 840 F.2d 118, 129-30 n.7 (1st Cir. 1988); Smith v. State, 765 N.E.2d 578, 583 (Ind. 2002); see also United States v. Simmons, 247 F.3d 118, 124 (4th Cir. 2001). In North Carolina, such a restriction on the doctrine is necessitated by the structure of our criminal justice system. A prosecutor is under a constitutional duty to enforce the criminal law by prosecuting criminal actions on behalf of the state. N.C. Const. art. IV, § 18; State v. Prevatte, 356 N.C. 178, 237, 570 S.E.2d 440, 472 (2002) ("prosecutor has the duty to vigorously present the State's case"), cert. denied, ___ U.S. ___, 155 L.Ed. 2d 681 (2003); see also State v. Blakeney, 352 N.C. 287, 312, 531 S.E.2d 799, 817 (2000), cert. denied, 531 U.S. 1117, 148 L.Ed. 2d 780 (2001). We have frequently emphasized that prosecutors must be given "wide latitude" in framing their arguments in the pursuit of this constitutional duty. E.g., State v. Flowers, 347 N.C. 1, 36-37, 489 S.E.2d 391, 411-12 (1997), cert. denied, 522 U.S. 1135, 140 L.Ed. 2d 150 (1998); State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975). Moreover, as the United States Supreme Court stated in New Hampshire, "`When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined.'" 532 U.S. at 755, 149 L.Ed. 2d at 981 (quoting Heckler v. Cmty. Health Servs., 467 U.S. at 60, 81 L.Ed. 2d at 52). Thus, in light of the state's unique status as a litigant and its interest in enforcing the criminal law, "it is well settled that the Government may not be estopped on the same terms as any other litigant." Id. In sum, the strong public interest in maintaining prosecutorial independence normally precludes application of judicial estoppel against the government in criminal cases.
Next, we emphasize that our recognition of judicial estoppel is limited to the context of inconsistent factual assertions and that the doctrine should not be applied to prevent the assertion of inconsistent legal theories. Although not addressed in New Hampshire v. Maine, this limitation on the reach of judicial estoppel has been adopted by the majority of courts to consider the matter. See, e.g., Wight v. BankAmerica Corp., 219 F.3d at 90; Pittson Co. v. United States, 199 F.3d 694, 701 n.4 (4th Cir. 1999); Lowery, 92 F.3d at 224; Royal Ins. Co. v. Quinn-L Capital Corp., 3 F.3d 877, 885 n.6 (5th Cir. 1993), cert. denied, 511 U.S. 1032, 128 L.Ed. 2d 193 (1994); Hayne Fed. Credit Union v. Bailey, 327 S.C. at 251-52, 489 S.E.2d at 477. Moreover, such a limitation is necessary to avoid interference with our liberal pleading rules, which permit a litigant to assert inconsistent, even contradictory, legal positions within a lawsuit. N.C.G.S. § 1A-1, Rule 8 (2003); see also Zurich Ins. Co., 667 F.2d at 1167; Montrose Med. Corp. Particip. Savings Plan v. Bulger, 243 F.3d 773, 782 (3d Cir. 2001). In sum, while other doctrines such as "mend the hold" and judicial admissions may restrict the extent to which a party may assert contradictory legal positions, the doctrine of judicial estoppel limits only inconsistent assertions of fact.
Having delineated the doctrine of judicial estoppel, we now turn to an issue that concerns its application here. Plaintiff argues, and the Court of
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