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Law Bulletin column: Stipulations are not set in concrete
DAVID J. ROBINSON
Law Bulletin columnist
Published: September 19, 2018
Stipulations have become commonplace in Illinois criminal courts, and for good reason. Stipulations, if done correctly, can often eliminate issues on appeal, make proceedings more understandable and synthesize a case for the fact-finder. For these reasons, stipulations ought to be encouraged whenever appropriate.
Black’s Law Dictionary defines “stipulation,” in pertinent part, as a “[v]oluntary agreement between opposing counsel concerning disposition of some relevant point so as to obviate need for proof or to narrow range of litigable issues[.]” Fifth Ed. at 1269.
Because a stipulation is an agreement between opposing parties, one side or the other occasionally has reason to — indeed, the necessity to — “back out of the deal.”
Trial proceedings can often be fluid events and things can change such that it becomes necessary to re-evaluate the nature of the agreement with the opposing side — that is, sometimes facts are not what they appeared to be, sometimes witnesses who had been counted on become unavailable and sometimes parties simply change their mind about how certain evidence should be presented to the fact-finder.
When that happens, it is important to back out of the stipulation with care.
The appellate court recently opined about how and — perhaps more importantly — when a unilateral withdrawal from a stipulation may occur. People v. Pablo, 2018 IL App (3d) 150892.
In Pablo, the parties signed a written stipulation regarding testimony from a state’s witness. On the day of trial, however, the state moved to withdraw the stipulation and the trial court permitted it to do so over the defendant’s objection.
The defendant appealed and the majority reversed and remanded for further proceedings, concluding that the trial court erred by allowing the state to unilaterally withdraw from the agreement.
In so doing, the majority pointed out that stipulations are binding on both parties to the agreement and that in order to unilaterally withdraw from such an agreement a party must (1) “seasonably” make (2) a “clear showing” that the matter stipulated is untrue.
In Pablo, the majority held that the state failed on both counts: (1) the request to withdraw was not seasonably made, as it was made on the day of trial, and (2) the state never claimed that the alleged facts were untrue.
The emphasis there was directed at the fact that the opposing side was entitled to rely on the stipulation in preparing its case and, under the circumstances, it could not do that. In short, it was unfair to allow the state to back out on short notice.
Justice Vicki Wright dissented, opining that the “stipulation” in this case was not a stipulation at all, but was merely an agreed statement as to a potential witness’ testimony. Because either party is permitted to strike a witness at any time, the agreed statement as to the witness’ testimony here could be unilaterally withdrawn.
The outcome of Pablo notwithstanding, the takeaway is that when a party determines that a stipulation is not appropriate to present to the fact-finder, it should be immediately brought to the court’s attention and, in the appropriate circumstance, the other side should be given additional time to prepare its case in light of the withdrawal of the stipulation.
David J. Robinson is a lawyer, adjunct professor, author and chief deputy director for the State’s Attorneys Appellate Prosecutor.