Cited by

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

“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).

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

(“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 judicial proceeding

[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----”

103(a)(2) (error may not be predicated on ruling excluding evidence unless substance of evidence shown by offer of proof or apparent from context); , (“[The] proponent of the precluded evidence must ...

(holding that a finding of cruelty establishes the F.6 aggravator even without reaching heinousness or depravity).

“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.” State v. Towery, 186 Ariz. 168, 182

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

(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.” , (citation omitted).

¶ 10 The attorney-client privilege is the oldest of privileges for confidential communications and is “rigorously guarded ‘to encourage full and frank communications between attorneys and them clients and thereby promote broader public interests in the observance of law and the administration of justice.’ ” 2 n. 6 , n. 6 (1996) (citation omitted).

P.2d 1287 (1999); P.2d 784 (1997); P.2d 290 (1996); P.2d 1214 (1996).

We have interpreted Penry, Eddings, and Lockett as directing the sentencing judge to “consider evidence proffered for mitigation.” , 598 ¶ 61, , 1289 ¶ 61 (1998)(with respect to mitigating evidence, the sentencing judge is “entitled to give it the weight it deserves”); , (“The sentencer therefore must consider the defendant’s upbringing if proffered but is not required to give it significant mitigating weight.”).

-87 , -09 (1996) (prosecutor could be accountable for failure of expert to transmit nine-month-old report until less than week before trial).

¶7 Judicial estoppel is a doctrine that protects the integrity of the judicial system by “preventing] a party from taking an inconsistent position in successive or separate actions.”

Cruelty requires conclusive evidence that the victim was conscious during the infliction of violence and *421 experienced significant “uncertainty as to [her] ultimate fate.”

(holding that a trial court’s finding of cruelty beyond a reasonable doubt sufficiently establishes the F.6 factor).

‘We are not eager to reverse a conviction on grounds of prosecutorial misconduct as a method to deter such future conduct.”

¶ 51 This court has held that “family background may be a substantial mitigating circumstance when it is shown to have some connection with the defendant's offense-related conduct.” , cert.

Generally, “ ‘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.’” , , -12 (1951) (emphasis added).