Chapter 2 - § 2.4 GROUNDS FOR DENYING

• Jurisdiction: Colorado

§ 2.4 GROUNDS FOR DENYING

Colorado

➢ Constitutional Right to Present a Defense. The trial court violated the defendant's constitutional right to present a defense by granting the prosecution's motion in limine disallowing the defendant's use of testimony on the issue of impaired mental condition. People v. Sandoval, 805 P.2d 1126, 1127 (Colo. App. 1990).

➢ General. Where the evidence is sufficient to raise a jury question as to proposed defenses, a court's denial of a motion in limine to bar evidence of these defenses does not prejudice the movant and will not be reversed. Jackson v. Harsco Corp., 653 P.2d 407, 410 (Colo. App. 1982), rev'd on other grounds, 673 P.2d 363 (Colo. 1983).
➢ General. The plaintiff's motion in limine to exclude a patient's statements to a physician as inadmissible hearsay and not covered by any hearsay exception was denied by the trial court. The trial court found that the statements were made for purposes of diagnosis and treatment under CRE 803(4), and that the statement's probative value was not substantially outweighed by the danger of unfair prejudice under CRE 403. Kelly v. Haralampopoulos, 327 P.3d 255, 262 (Colo. 2014).

➢ General. Water court properly denied the applicant's motion for declaratory judgment, which the water court treated as a motion in limine. USI Props. East, Inc. v. Simpson, 938 P.2d 168, 172-73 (Colo. 1997) (en banc).

➢ Insufficient Prejudice Shown. A motion in limine that sought to exclude the testimony of two expert witnesses was properly denied where the movant was furnished with medical records, raw medical data, and the experts' names prior to trial and the movant failed to request a continuance after the motion was denied. Kussman v. City & County of Denver, 671 P.2d 1000, 1001 (Colo. App. 1983).

➢ No Prejudice Shown. There is no prejudice for a denial of a motion in limine when the subject evidence is not admitted. Gonzales v. Mascarenas, 190 P.3d 826, 831 (Colo. App. 2008).

➢ Affirmative Defenses. Because the doctrines of assumption of risk and contributory negligence overlap to some extent, a trial court will not err in denying a motion in limine to exclude evidence or argument pertaining to the defense of assumption of risk even though the defense is not an issue in the case. Cruz v. Union Pac. R.R. Co., 707 P.2d 360, 362 (Colo. App. 1985).

➢ Surprise. The trial court's denial of a motion in limine will not be reversed where it is determined that the plaintiff's surprise was a product of

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