Chapter 9 - § 9.2 • LIMITATIONS

• Jurisdiction: Colorado

§ 9.2 • LIMITATIONS

Colorado

➢ When May Statement Be Given. After the plaintiff makes an opening statement, the defendant may request that his or her opening be reserved until the conclusion of the plaintiff's case. The trial court has discretion to determine whether the defendant may reserve opening statement. Sullivan v. Beers, 529 P.2d 320, 324 (Colo. App. 1974) (not selected for official publication).

Practice Pointer
While the defendant may be tempted to reserve his or her opening statement on the theory that at the time the defendant's statement is made he or she will know the full extent of the plaintiff's evidence, most lecturers on trial tactics recommend against this procedure on the basis that this is the defendant's only opportunity at the outset of the case to tell the jury the defense position prior to the jury hearing the plaintiff's evidence.

These same lecturers also recommend that telling the jury that opening statements "are not evidence" weakens the impact of the defendant's opening. They recommend that opening statement be used to tell the defendant's story or paint his or her picture without the use of "boilerplate" phrases.

➢ When Opening Statement Refused. Since the purpose of the opening statement is to inform, if a defendant reserves the right to make an opening statement at the end of the People's case and then announces to the court that he or she will present no evidence, the court may properly deny the request to make the opening statement. Thompson v. People, 336 P.2d 93, 97 (Colo. 1959).

➢ When Opening Statement Supplemented. The court has discretion to allow a party to make additional opening comments if a ruling by the court results in surprise. Young v. People, 488 P.2d 567, 572-73 (Colo. 1971).

➢ Time Allowed. Time allowed for opening statement is within the discretion of the court. Waid v. Hobson, 17 Colo. App. 54, 67 P. 176, 177 (1901); San Miguel Consol. Gold Mining Co. v. Bonner, 33 Colo. 207, 210-212, 79 P. 1025, 1026 (1905).

➢ Constitutional Issue; Limitation on Time. On appeal from district court appeal, the petitioner challenged the county court's order limiting time for presentation of case under C.R.S. § 13-14-106 to 30 minutes total, including opening statement and evidentiary presentation. The petitioner argued that the limitation deprived her of due process. The respondent argued that Maloney v. Brassfield, 251 P.3d 1097 (Colo. App. 2010), gives trial courts broad discretion for docket management.

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