Chapter 17 - § 17.7 APPEALING TO PASSION AND PREJUDICE|INFLAMMATORY ATTACKS ON ADVERSE ATTORNEY

• Jurisdiction: Colorado

§ 17.7 APPEALING TO PASSION AND PREJUDICE/INFLAMMATORY ATTACKS ON ADVERSE ATTORNEY

Colorado

➢ Referencing Runaway Verdicts/Juries Improper. In a medical negligence case, the Colorado Court of Appeals affirmed the district court's conclusion that it was inappropriate and improper to argue to appeal to the passions and prejudices of the jury when the defense counsel argued that the other defendants settled to avoid "runaway verdicts, runaway juries and media related to adverse care." Acierno v. Garyfallou, 409 P.3d 464 (Colo. App. 2016). The district court was "shocked" by the argument and advised the jury that the comments were "completely inappropriate." Id.

➢ Appeals to Jurors' Personal Financial Interests Improper. It was highly prejudicial for an attorney to tell the jurors in a condemnation case: "Any payment that is made to the respondents . . . will come out of your own pockets." Attempts to inject the personal interests of the jurors in the determination of the amount of compensation renders their passive prejudice active. Denver Joint Stock Land Bank v. Comm'rs, 98 P.2d 283, 285 (Colo. 1940).

➢ Appeals to Community Sentiment Regarding a Claim or Defense Is Improper. The district attorney diverted attention from the evidence in the case by appealing to the jurors' biases and prejudices that defense lawyers manipulate juries and vulnerable victims in other cases to secure acquittals. People v. Nardine, 409 P.3d 441, 450 (Colo. App. 2016).
➢ Mentioning "Insurance" or "Pay Out of Own Pocket" Improper. Stating that the defendant would have to pay damages "out of his own pocket" creates an improper inference that the defendant lacked insurance and violated the rule that prohibits reference to the financial status of a party. Cook Inv. v. Seven-Eleven Coffee Shop, 841 P.2d 333, 334 (Colo. App. 1992); Prudential Prop. & Cas. Co. v. Dist. Ct., 617 P.2d 556 (Colo. 1980).

➢ Mentioning Insurance Leads to Mistrial. The flagrant mention of insurance before the jury may cause a mistrial, but the determination of whether to grant a mistrial is left to the discretion of the court. Johns v. Shinall, 103 Colo. 381, 39091, 86 P.2d 605, 609 (Colo. 1939); Jacobs v. Commonwealth Highlands Theatres, Inc., 738 P.2d 6, 12-13 (Colo. App. 1986); Appel v. Sentry Life Ins. Co., 701 P.2d 634, 638 (Colo. App. 1985), aff'd, 739 P.2d 1380 (Colo. 1987).

➢ Mentioning Insurance Results in No Mistrial. Merely mentioning an insurance company by name is not improper per se, and the

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