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Judicial Estoppel Bar to Argument — Acceptance of Curative Instruction Bars Appellate Challenge to Its Efficacy

State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate

Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for mistrial.

Holding:

¶22. This is classic judicial estoppel. The position English-Lancaster took in the trial court is clearly inconsistent with the one he assumes on appeal. At trial he urged the court to generate a cautionary instruction and now he maintains that a cautionary instruction was insufficient. The facts at issue here on appeal are the same as before the trial court. Finally, English-Lancaster requested and was provided with a cautionary instruction that he expressly approved without alteration. English-Lancaster cannot advocate a certain position in the trial court (requesting a cautionary instruction) and a contrary position on appeal (that the cautionary instruction was inadequate and a mistrial was necessary). See State v. Washington, 142 Wis. 2d 630, 635, 419 N.W.2d 275 (Ct. App. 1987). The doctrine of judicial estoppel bars us from addressing this argument.

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