Chapter 17 - § 17.5 • ARGUING THE EVIDENCE AND THE REASONABLE INFERENCES

• Jurisdiction: Colorado

§ 17.5 • ARGUING THE EVIDENCE AND THE REASONABLE INFERENCES

Colorado

➢ Ethics in Closing. Rule 3.4(e) of the Colorado Rules of Professional Conduct preclude counsel from alluding "to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.
➢ Counsel May State and Discuss the Admitted Evidence and All Inferences. During closing argument, counsel may comment on the evidence admitted at trial, the reasonable inferences that can be drawn therefrom, and the instructions of law given to the jury. People v. Montalvo-Lopez, 215 P.3d 1139 (Colo. App. 2008). Even if the inferences are illogical and erroneous, counsel may draw and state to the jury his or her own conclusions from the law and testimony, provided counsel does not misstate the testimony nor state facts as to which there is no testimony. Leick v. People, 322 P.2d 674, 678 (Colo. 1958), aff'd, 345 P.2d 1054 (Colo. 1959) (sentencing hearing). This is true even if an issue such as future medical damages was not addressed in the jury instructions but was addressed in the evidence. Polster v. Griff's of America, 525 P.2d 1179, 1181 (Colo. App. 1974).

➢ Reference to Excluded Evidence in Closing Prohibited. In an attorney discipline case decided under the old Code of Professional Conduct, the court held that deliberate reference in closing to documents that had been ruled inadmissible subjected the violator to contempt and ethics charges. Doing so was a violation of what are now the Colorado Rules of Professional Conduct, Rules 3.1 (meritorious claims and contentions), 3.4 (allude to any matter that will not be supported by admissible evidence), and 8.4 (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation or conduct that is prejudicial to the administration of justice). People v. Janiszewski, 901 P.2d 476 (Colo. 1995). Prejudicial violations of in limine orders can cause reversal. Halliburton v. Pub. Serv. Co., 804 P.2d 213, 218 (Colo. App. 1990).

➢ Intentional Misstatements of Evidence or Intentionally Misleading Inferences Prohibited. The defendant's right to a fair trial was violated when a prosecutor's closing argument, while supported by evidence that had been admitted at

...