Chapter 17 - § 17.2 OBJECTIONS

• Jurisdiction: Colorado

§ 17.2 OBJECTIONS

Practitioners view closing as sacred ground where objections should be reserved for the truly egregious. Holding objections deprives the client of curative instructions and rights on appeal. Objections should be made contemporaneous to the objectionable argument or commentary during closing or the objections will be waived on appeal as detailed below.

Colorado

➢ Objections Not Made at Trial Are Waived in Civil Cases. A contemporaneous objection to closing argument must be made or objection to its propriety is waived. Clough v. Williams Prod. RMT Co., 179 P.3d 32 (Colo. App. 2007); Combined Commc'ns Corp. v. Pub. Serv. Co., 865 P.2d 893 (Colo. App. 1993). Failure to object to a remark that a lost earnings award will not be taxed was fatal to ability to raise the issue for the first time on appeal. Rego Co. v. McKown-Katy, 801 P.2d 536, 540 (Colo. 1990). Failure to object to statements regarding the effect an insurance company's decision-making has on policyholders waived any error. Klein v. State Farm Mut. Auto. Ins., 948 P.2d 43, 52 (Colo. App. 1997). The insured consented to an insurance company's use of a defense not raised in pleadings by his failure to object. Great American Ins. Co. v. Ferndale Dev. Co., 523 P.2d 979, 980 (Colo. 1974).

➢ Must Object to Every Objectionable Remark to Preserve for Appeal. In criminal cases, if contemporaneous objections are not made to certain prosecutor's remarks but to others, the ones not objected to are reviewed from the plain error standard. People v. Eckert, 919 P.2d 962, 967 (Colo. App. 1996). The court will review for plain error; however, the court will consider failure to contemporaneously object as an indication that the argument was not overly damaging. People v. Kendall, 174 P.3d 791 (Colo. App. 2007). To constitute plain error, misconduct during closing argument must be flagrant or glaring and it must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the outcome. People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff'd, 119 P.3d 1073 (Colo. 2005).

➢ Object and Request Curative Instruction. It was in the discretion of the trial court to conclude that the argument was not so inflammatory as to require a mistrial where the defense objected but did not ask for the court to instruct the jury to disregard the district attorney's argument. People v. Beeman, 551 P.2d 726 (Colo. App. 1976), rev'd on other grounds, 565 P.2d 1340 (Colo. 1977).

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