§ 6.07 INVITED ERROR RULE

• Jurisdiction: United States

§ 6.07. INVITED ERROR RULE

The "invited error" doctrine is another waiver rule.⁷¹ This rule prohibits a party who induces error in the trial court from taking advantage of the error on appeal.⁷² 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.' "⁷³

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Notes:

^[71] 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.

^[72] See All American Life and Cas. Co. v. Oceanic Trade Alliance Council Int'l, Inc., 756 F.2d 474, 479 (6th Cir. 1985) ("Under the 'invited error' doctrine, it is an accepted matter of law that where the injection of allegedly inadmissible evidence is attributable to the action of the party seeking to exclude that evidence, its introduction does not constitute reversible error."); 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 of strategic waiver, also known as invited error, '[a]...