§ 11.5 Related Doctrines

• Jurisdiction: Washington

§11.5 RELATED DOCTRINES

Related to the rule that appellate courts will decline to review errors raised for the first time on review are the doctrines of invited error and tactical waiver, preclusion of inconsistent positions, affirmance on other grounds, and the general prohibition against raising grounds for relief issues for the first time in a reply brief.

(1) Invited error and tactical waiver

"A party cannot properly seek review of an alleged error which the party invited." Davis v. Globe Mach. Mfg. Co., Inc., 102 Wn.2d 68, 77, 684 P.2d 692 (1984) (by allowing her expert to mention a similar accident, plaintiff waived her right to object to defendant's evidence of a defense verdict in lawsuit arising from that similar accident); see also Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 256-57, 840 P.2d 860 (1992) (when the defendant proposed, as a correct statement of the law, an instruction defining "manufacturer," and the trial court accepted the defendant's definition, the defendant could not argue on review, based on a different definition of "manufacturer," that there was insufficient evidence to support a finding that the defendant was a manufacturer); State v. Armstrong, 69 Wn.App. 430, 434-35, 848 P.2d 1322 (a defendant may not challenge an information as defective when he has earlier successfully opposed the prosecution's motion to amend the information to cure the defect), review denied, 122 Wn.2d 1005 (1993).

The doctrine of invited error may apply even if the error is of constitutional magnitude. In State v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990), the Supreme Court refused to review a claim of constitutional error in a jury instruction that the defendant had requested at trial. On the other hand, in State v. Studd, 137 Wn.2d 533, 550-51, 973 P.2d 1049 (1999), and in State v. Kyllo, 166 Wn.2d 856, 215 P.3d 177 (2009), the court held that the invited error doctrine did not bar review of claims of ineffective assistance of counsel based on improper jury instructions that the defendants had proposed.

A similar rule applies when it can be shown that a party has consciously refrained, for tactical reasons, from claiming error in the trial court. See, e.g., State v. Donohoe, 39 Wn.App. 778, 781-82, 695 P.2d 150 (defendant waived his right to argue that certain evidence was improperly admitted when defense counsel admitted at oral argument that he had consciously foregone that argument at trial for tactical reasons), review denied, 103 Wn.2d 1032 (1985); see also State v. Valladares, 99 Wn.2d 663, 671-72, 664 P.2d 508 (1983) (affirmative withdrawal of motion to suppress evidence). A party will not be deemed to have invited error, however, simply by adopting tactics to mitigate the effects of an erroneous trial court ruling. State v. Thang, 145 Wn.2d 630, 648, 41 P.3d 1159 (2002) ("[W]hen a litigant against whom evidence of other crimes is ruled admissible seeks to minimize its effect by introducing it himself, he is not precluded from appealing the admissibility."); State v. Hardy, 133 Wn.2d 701, 706 n.2, 946 P.2d 1175 (1997) ("The fact that defense counsel brought out the damaging impeachment evidence on direct does not foreclose defendant's subsequent challenge in light of the trial court's ruling that it was admissible."); State v. Watkins, 61 Wn.App. 552, 557-59, 811 P.2d 953 (1991) (when trial court had ruled that defendant's prior conviction was admissible, defendant did not waive review of that ruling by testifying about the conviction on direct examination by defense counsel); Garcia v. Providence Med. Ctr., 60 Wn.App. 635, 641, 806 P.2d 766 (in view of the trial court's pretrial ruling that a medical negligence plaintiff's abortions were admissible, the plaintiff did not waive her right to review of that ruling by being the first to mention...