Chapter 17 - § 17.3 • CURATIVE INSTRUCTIONS

• Jurisdiction: Colorado

§ 17.3 • CURATIVE INSTRUCTIONS

Colorado

➢ Limiting Instructions Usually Sufficient to Overcome Improper Statements in Closing. Many times the curative or limiting instructions given by the court after an improper statement offsets the unfairness. People v. Fell, 832 P.2d 1015, 1018 (Colo. App. 1991); People v. Saiz, 923 P.2d 197, 207 (Colo. App. 1995); People v. Bowring, 902 P.2d 911, 921 (Colo. App. 1995); People v. Orona, 907 P.2d 659, 664-65 (Colo. App. 1995); Sheldon v. Schmidt, 351 P.2d 288 (Colo. 1960). Instructing the jury to disregard any remarks of the court not directed to the jury neutralized the effect of the court's characterization of counsel's statement as "fair comment." Juries are presumed to follow curative instructions. Jones v. Feiger, Collison & Killmer, 903 P.2d 27, 31 (Colo. App. 1994), rev'd on other grounds, 926 P.2d 1244 (Colo. 1996). Given the court's instruction that attorneys' arguments were not evidence, and considering the totality of the argument, attorney's use of an improper hypothetical did not cause prejudice. Smith v. JBJ, Ltd., 694 P.2d 352 (Colo. App. 1984).
➢ Curative Instruction for Improper Evidence Argument. "An objectionable characterization of the evidence during closing arguments does not necessarily constitute reversible error where the jury is given a curative instruction." Roget v. Grand Pontiac, Inc., 5 P.3d 341, 346 (Colo. App. 1999).

➢ Failure to Give Curative Instruction. "It is improper for counsel to misstate or misinterpret the law during closing argument. When a court, upon a proper objection, declines to direct the jury that the prosecutor's version of the instruction is incorrect, the court improperly permits the jury to adopt the [attorney's] version of the law." People v. Anderson, 991 P.2d 319, 321 (Colo. App. 1999) (citations omitted).

Federal

➢ Attorney Argument Is Not Evidence. A jury may be instructed that attorney argument is not evidence and should not be treated as such. While such an instruction may cure some impropriety during closing arguments, with more improper or prejudicial conduct of the attorney during closing, a specific and timely curative instruction should be considered and delivered. Whittenburg v. Werner Enters. Inc., 561 F.3d 1122, 1131 (10th Cir. 2009).

➢ Curative Instructions Following Improper Remarks Essential. Curative instructions that address the precise impropriety — when issued promptly and after the improper argument — can go far in erasing prejudice

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