Chapter 19 - § 19.5 EVIDENCE TO SUPPORT INSTRUCTION

• Jurisdiction: Colorado

§ 19.5 EVIDENCE TO SUPPORT INSTRUCTION

Colorado

➢ General. It is error to give an instruction that is not supported by the evidence. Gordon v. Benson, 925 P.2d 775, 778 (Colo. 1996); Phillips v. Monarch Recreation Corp., 668 P.2d 982, 986 (Colo. 1983).

➢ General. A trial court must properly instruct the jury on the law applicable to the case if there is sufficient evidence in the record to support it. Garhart ex rel. Tinsman v. Columbia/HealthONE, LLC, 95 P.3d 571, 587 (Colo. 2004).

➢ Instruction that Diverts Jury; Denied. An instruction creating an issue of fact not supported by the evidence or tending to mislead or divert the jury from real factual issues should not be given. Millenson v. State Dep't of Highways, 590 P.2d 979, 982 (Colo. App. 1978).

➢ More than Scintilla of Evidence Needed. A party is entitled to an instruction only when the instruction is supported by evidence and consistent with existing law, and there must be more than a mere scintilla of evidence to support the instruction — sufficient competent evidence is required. Melton v. Larrabee, 832 P.2d 1069, 1072 (Colo. App. 1992).

Federal

➢ General. It is error to give an instruction on a theory that is unsupported by sufficient evidence. Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221, 1236 (10th Cir. 1999); Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1299 (10th Cir. 1989).
➢ General; Must be Supported by Evidence. "Under federal law, a jury instruction must be supported by sufficient competent evidence, direct or circumstantial, to permit a jury finding based on the instruction." A "'mere scintilla' of evidence will not

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