Chapter 42 - § 42.16 • OBJECTIONS AND WAIVER

• Jurisdiction: Colorado

§ 42.16 • OBJECTIONS AND WAIVER

If an incompetent witness is permitted to testify without objection the objection is waived¹¹⁸ and if there is an appeal and no objection was made in the lower court, an objection in the upper court will be of no avail.¹¹⁹ There is no need to make an objection at the time the witness takes the stand, but this may be postponed until the witness is asked a question as to which he or she is an incompetent witness.¹²⁰ The better practice would be to raise the issue after the questionable witness has been sworn and to ask opposing counsel what he or she expects to elicit from the witness, before any testimony is taken, and to reach agreement with opposing counsel and the court as to the area of testimony.¹²¹

A party has no complaint if testimony in his or her favor is given by an incompetent witness.¹²²

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Notes:

^[118] Fister v. Fister, 222 P.2d 620 (Colo. 1950); Estate of Koch, 136 P.2d 673.

^[119] Faden v. Estate of Midcap, 152 P.2d 682 (Colo. 1944).

^[120] Parker v. Hilliard, 102 P.2d 734 (Colo. 1940); Norris, 18 P.2d 467; Gilmour v. Hawley Merchandise Co., 121 P. 765 (Colo. App. 1912); In re Estate of Moore, 515 P.2d 1147 (Colo. App. 1973) (not selected for official publication); Hillman, 591 P.2d 1332.

^[121] See Parker v. Hilliard, 102 P.2d 734 (Colo. 1940).

^[122] Fleming v. Miller, 267 P. 1064 (Colo. 1928).