§ 6.07 Invited Error Rule

• Jurisdiction: United States

§ 6.07 Invited Error Rule

The "invited error" doctrine is another waiver rule.⁷³ This rule prohibits a party who induces error in the trial court from taking advantage of the error on appeal.⁷⁴ For example, if counsel elicits testimony, she cannot complain that it is hearsay on appeal. Similarly, if counsel brings out polygraph results when questioning a witness, counsel will not be permitted to object that polygraph evidence is inadmissible. However, as one court noted, "invited error must be more than mere 'acquiesence in the trial judge's erroneous conclusion.'"⁷⁵

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Notes:

^[73] Ohler is a type of "invited error" case. In that case, however, the defense did not offer the evidence until after it had tried unsuccessfully to have it excluded via the motion in limine.

^[74] See United States v. Addison, 803 F.3d 916, 919 (7th Cir. 2015) ("Even assuming the trial court erred by allowing Beliveau to testify about his track record, the error was invited by defense counsel. . . . In short, defense counsel opened the door to Beliveau's testimony about his track record and then relied on that testimony in closing to point out the alleged weakness of the government's case. It is not our job to rescue Addison from the consequences of that strategic choice."); People v. Wittrein, 221 P.3d 1076, 1082 (Colo. 2009) ("Even though Dr. Stern's response was impermissible, we hold that the error was invited by defense counsel's questioning."); State v. Gary M.B., 676 N.W.2d 475, 482 (Wis. 2004) ("Under the doctrine...