Chapter 5 - § 5.4 • TRIAL PROCEDURES


Consider using a Jury Trial Checklist, such as the one in Exhibit 5D, to keep track of the trial.

§ 5.4.1—Opening Statements

Both the prosecution and the defense are entitled to give opening statements, in that order. "The prosecution is not required to make an opening statement in Colorado; the district attorney, in his discretion may waive opening statement." People v. Barron, 578 P.2d 649, 650 (Colo. 1978). The defense has the right to reserve opening statement until the conclusion of the prosecution's case. See, e.g., O'Loughlin v. People, 10 P.2d 543, 547 (Colo. 1932).

"The primary purpose of an opening statement is to provide the jury with a brief introductory outline, without argument, of what counsel expects the evidence will show. There are no rigid requirements on the content of an opening statement in a criminal case, and the judgment of the trial court as to what will be allowed will not be overturned absent an abuse of discretion." People v. Bustos, 725 P.2d 1174, 1177 (Colo. App. 1986).

Opening statements are not evidence. Mason v. United States, 408 F.2d 903, 906-07 (10th Cir. 1969). The trial court will instruct the jury that neither opening statement nor closing argument is evidence. See COLJI-Crim. B:03.

The most common error in opening statements is for counsel to argue. The case law and standards are clear that it is improper to argue in opening statement. Bustos, 725 P.2d 1174; Barron, 578 P.2d at 650; ABA Standards, The Defense Function, 4-7.4.

It is improper for counsel to discuss a fact in opening statement unless counsel has a good-faith belief that it is an admissible and probative fact. While minor inconsistencies between the opening statement and the evidence actually adduced will usually be viewed as harmless error, a significant variance may result in reversal. Archina v. People, 307 P.2d 1083, 1098 (Colo. 1957).

It is improper to inject personal opinion into an opening statement. United States v. Dinitz, 424 U.S. 600, 602-03 (1976); Wilson v. People, 743 P.2d 415, 418 (Colo. 1987) (improper to inject personal credibility even in closing argument).

Some cases have held that prosecutors must be particularly sensitive to the rules concerning opening statement (the same is true of other aspects of trials) because of the power they have and the fact that they represent the government. For example, People v. Hernandez, 829 P.2d 394, 396 (Colo. App. 1991), held that improper comments in opening statement are "inconsistent with the proper role and dignity expected of the prosecutor for the government . . . ." Taylor v. United States, 413 F.2d 1095, 1096 (D.C. Cir. 1969), noted, in the context of closing argument, that prosecutors must "uphold the dignity of the Government . . . in keeping with what the Courts and the public expect of its representatives." It would seem appropriate to point out the special responsibilities of a prosecutor when making certain objections in opening statements.

The trial court has broad discretion in setting time limits on the length of opening statements. Glenn v. Cessna Aircraft Co., 32 F.3d 1462, 1464 (10th Cir. 1994). The same is true with regard to the use of exhibits or other demonstrative evidence to be used during opening statements. Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1449 (10th Cir. 1993).

§ 5.4.2—Evidence Issues

Issues relating to evidence offered at trial are discussed in Chapter 6.

§ 5.4.3—Witness Examination

The trial court controls the "mode and order of interrogating witnesses and presenting evidence." CRE 611(a). The court's control should be exercised with three goals in mind: (1) to ascertain the truth, (2) to avoid wasting time, and (3) to protect witnesses from harassment or undue embarrassment. Id. The court has broad discretion in running a trial. For example, in People v. Johnson, 30 P.3d 718, 726 (Colo. App. 2000), the court rejected the defendant's argument that the trial court exceeded its discretion by allowing the prosecution to recall a defense witness in order to impeach that witness with a felony conviction. See People v. Whitman, 205 P.3d 371 (Colo. App. 2007), for a discussion on special procedures for child witnesses.

Leading questions should not be used during direct examination "except as may be necessary to develop [the witness's] testimony." CRE 611(c). Appellate courts have approved the use of leading questions on direct examination when the witness is young and the testimony confusing. People v. Raehal, 971 P.2d 256, 257-58 (Colo. App. 1998); People v. Gillis, 883 P.2d 554, 561 (Colo. App. 1994). The rule also provides that leading questions may be used during direct examination when a party calls a hostile witness or a witness identified with an adverse party. CRE 611(c). The rule has been described as enlarging the category of witnesses previously deemed adverse. Bruce Hughes, Inc. v. Ingels & Assocs., 653 P.2d 88, 90 (Colo. App. 1982). The determination of whether to allow leading questions is within the discretion of the trial court. Id.

A criminal defendant has a constitutional right to confront and cross-examine witnesses. People v. Harris, 762 P.2d 651, 663 (Colo. 1988). The defendant's right to confront and cross-examine extends to out-of-court "testimonial" statements introduced at trial, regardless of the admissibility of those statements under the rules of evidence. Crawford v. Washington, 541 U.S. 36, 38 (2004). See § 6.9 in this Benchbook for a lengthy discussion about this issue.

The scope of cross-examination is limited to the subject matter of the direct examination of the witness and matters affecting the credibility of the witness. CRE 611(b).

The scope of re-direct and re-cross-examination are committed to the discretion of the trial court. People v. King, 765 P.2d 608, 609 (Colo. App. 1988). This discretion can include a ban on re-cross-examination if there has been a complete opportunity to cross-examine and no new matters have been raised. People v. Kerber, 64 P.3d 930, 932 (Colo. App. 2002), overruled on other grounds by Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005).

Counsel making an objection need only state "objection" and the general ground, e.g., "hearsay," to appropriately make an objection. Counsel need not identify any particular hearsay exception and argue against its applicability. Further argument may be appropriate if reliance on a particular exception is argued by the proponent. Blecha v. People, 962 P.2d 931, 940 (Colo. 1998). Counsel should be allowed to make a contemporaneous record concerning the objection. Jones v. District Court, 780 P.2d 526 (Colo. 1989). However, the failure to do so is not automatic grounds for reversal if the assertions of error can be adequately ascertained from the existing record. People v. Vialpando, 804 P.2d 219, 221-22 (Colo. App. 1990).

§ 5.4.4—Exhibits

Because county courts do not have court reporters, it is essential that the trial judge maintain control over the exhibits. After an exhibit is introduced, counsel must always bring the exhibit back to the bench whenever it is used. At each recess, and especially at the end of the day, the court must make sure it has all the exhibits. Consider using an Exhibit form, such as the one appearing at the end of this chapter as Exhibit 5C.

§ 5.4.5—Motion for Judgment of Acquittal at Close of Prosecution Case

A motion for judgment of acquittal may be made by the defense (1) at the conclusion of the People's case, (2) at the close of all of the evidence, and/or (3) after a verdict of guilty or the discharge of a jury that has been unable to reach a verdict. The court may grant a judgment of acquittal on its own motion. Crim. P. 29; People v. Bennett, 515 P.2d 466, 468 (Colo. 1973).

When a motion for judgment of acquittal is made at the conclusion of the prosecution's case, the court must rule on it before proceeding. When a motion is made at the conclusion of all the evidence, the court may reserve ruling on the motion and rule while the jury is deliberating, after the jury returns a guilty verdict, or after the jury is discharged without having been able to reach a verdict.

Bennett, 515 P.2d at 469, establishes the following standard, which should be made part of the record of the court's ruling on a motion for judgment of acquittal:

[W]hether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.

In passing on a motion for judgment of acquittal, "the trial judge is required to give full consideration to the right of the jury to determine the credibility of witnesses, the weight to be afforded evidence, as well as the right to draw all justifiable inferences of fact from the evidence. . . . If the evidence is such that reasonable jurors must necessarily have a reasonable doubt, the judge must direct an acquittal, because no other result is permissible within the scope of the jury's function." Id. at 470; see also People v. Hollenbeck, 944 P.2d 537 (Colo. App. 1996).

"The limitation upon a judge's power to set aside a jury verdict is premised on the basic principle that the jury should decide the difficult questions of witness credibility and the weight to be given to conflicting evidence. Only when a witness' testimony is 'palpably incredible and . . . totally unbelievable' may the court properly reject it as a matter of law." People v. Ramirez, 30 P.3d 807, 808-09 (Colo. App. 2001) (quoting People v. Franklin, 645 P.2d 1, 4 (Colo. 1982)).

A grant of a motion for judgment of acquittal on a charge, or a reduction in a charge (for example, from DUI to DWAI), is an acquittal on that charge for purposes of double jeopardy protection. Double jeopardy bars the court from reinstating the charge after reconsidering or hearing other evidence. Smith v....

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