Cited by

¶18 Under the doctrine of judicial estoppel, “a party who has assumed a particular position in a judicial proceeding is estopped to assume an inconsistent position in a subsequent proceeding involving the same parties and questions.” see also Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000) (“Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.”).

-79 (1996) (explaining an offer of proof is not a proper method to submit admissible evidence to the trial court, but instead its purpose is to show “with reasonable specificity what the evidence would have shown” so that an appellate court can have an understanding of whether the trial court erred in excluding th

¶57 Viewing the evidence cumulatively, as we must, ¶ 19 (1999); –33 ¶ 28 (1999), it shows that Hedlund’s childhood abuse and neglect significantly impacted his behavior and is therefore entitled to substantial weight

State v. Towery , , 186, , 308 (1996).

that, after its federal case was dismissed, the Board “turned around and issued its 2015 order on remand directly contradicting its arguments in federal court.” ¶20 As a general rule, “a party who has assumed a particular position in a judicial proceeding is estopped to assume an inconsistent position in a subsequent proceeding involving the same parties and questions.” (citations omitted).

Co., ¶ 7 (App. 1998)); (“Denial of a sanction is generally not an abuse of discretion if the trial court believes the defendant will not be prejudiced.”) ().

–39, ¶ 11 (App. 2007) (rejecting claim that prosecutorial misconduct barred retrial on double jeopardy grounds and holding there must be “intentional conduct which the prosecutor knows to be improper and prejudicial”) (emphasis added); (where there has been misconduct but no error, or the error is harmless, the proper remedy is generally not reversal but affirmance followed by appropriate sanctions against the offending actor).

“Three requirements must exist before the court can apply judicial estoppel: (1) the parties must be the same, (2) the question involved must be the same, and (3) the party asserting the inconsistent position must have been successful in the prior judicial proceeding.” Flood Control, 230 Ariz. at 41, ¶ 35, 279 P.3d at 1203 (same).

on of the privilege against self- incrimination, whether direct or indirect, violates state and federal constitutional law) (); Corrales, 138 Ariz. at 591, “[p]rosecutorial misconduct is harmless error if we can find beyond a reasonable doubt that it did not contribute to or affect the verdict.” Hughes, 193 Ariz. at 80, ¶ 32 ( ).

Co., ¶ 7 (App. 1998)); (“Denial of a sanction is generally not an abuse of discretion if the trial court believes the defendant will not be prejudiced.”) ().

(party may not “assert[] one position at trial and another on appeal”).

(noting judicial estoppel “is invoked to protect the integrity of the judicial process by preventing a litigant from using the courts to gain an unfair advantage”) (citations omitted).

(“Judicial estoppel is not intended to protect individual litigants but is invoked to protect the integrity of the judicial process by preventing a litigant from using the courts to gain an unfair advantage.”).

“Error is harmless if we can conclude beyond a reasonable doubt that it did not contribute to or affect the verdict.”

(judicial estoppel only applies to prevent a party from taking an inconsistent position in a successive or separate action where: “(1) the parties [are] the same, (2) the question involved [is] the same, and (3) the party asserting the inconsistent position [was] successful in the prior

[from assuming] an inconsistent position in a subsequent proceeding involving the same parties and questions.’” -12 (1951).

Armstrong III, 218 Ariz. at 458 ¶ 20, 189 P.3d at 385

¶ 35 “Three requirements must exist before the court can apply judicial estoppel: (1) the parties must be the same, (2) the question involved must be the same, and (3) the party asserting the inconsistent position must have been successful in the prior judicial proceeding.”

(“Defendant’s failure to establish [evidence] by an offer of proof in the record makes it impossible to evaluate whether the trial judge unfairly limited Defendant’s cross-examination.”).

103(a)(2) (requiring offer of proof to preserve objection to exclusion of evidence); State v. Towery, 186 Ariz. 168, 179, (requiring, “[a]t a minimum, an offer of proof stating with reasonable specificity what the evidence would have shown”).

103(a)(2); see State v. Towery, 186 Ariz. 168, 179, (requiring, “[a]t a minimum, an offer of proof stating with reasonable specificity what the evidence would have shown”).

(successful party estopped from assuming inconsistent position in subsequent proceeding involving same parties and question).

“Given that counsel normally does not know in advance what a hostile witness will say on cross-examination, the offer-of-proof requirement for considering a claim on appeal [is] relaxed----”