Doctrine of Invited Error
The doctrine of invited error "prohibits a party from setting up an error at trial and then complaining of it on appeal." In re Personal Restraint of Breedlove, 138 Wn.2d 298, 312, 979 P.2d 417 (1999) (quoting State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996) (quoting State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995))).
The doctrine appears to require affirmative actions by the defendant.
In Wakefield, the State argued for the doctrine because the trial court became involved in the plea negotiations "in response to a request from defense counsel." Wakefield, 130 Wn.2d at 475.
Because the source of any error may have been not defense counsel but the trial court, whose actions cast doubt on the voluntariness of Wakefield's plea, this court declined to apply the invited error doctrine. Id.
In State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979), a defendant proposed a jury instruction and then challenged it on appeal.
In Breedlove, petitioner as part of a settlement agreed he would not be able to challenge the basis of the imposition of an exceptional sentence, signed the sentencing order, which contained an abbreviated reason for the exceptional sentence rather than findings of fact, and later complained that the trial court's failure to make specific findings was error. 138 Wn.2d at 301, 312-13.
In another case involving a plea agreement, a defendant stated in his plea that he understood that he would receive consecutive sentences but on appeal complained about the consecutive nature of the sentences. State v. Cooper, 63 Wn. App. 8, 9, 14, 816 P.2d 734 (1991).
In these invited error doctrine cases, the defendant took knowing and voluntary actions to set up the error; where the defendant's actions were not voluntary, the court did not apply the doctrine. Wakefield, 130 Wn.2d at 475.