BY: Sean Lacefield
BERG HILL GREENLEAF & RUSCITTI
For the second time in eight years the Colorado Supreme Court granted certiorari to decide whether an open ing statement can open the door to otherwise inadmissible evidence, but ultimately did not address the issue. In Davis v. People, the court chose not to address the issue, concluding that the evidence was admissible as non-hearsay. This term the court again had the opportunity to answer the question, but avoided doing so in Pernell v. People, relying on the harmless error doctrine.
As a result, the Court of Appeals split is unresolved, affecting every opening statement in every civil and criminal trial in Colorado. In Melton v. Larrabee, a division held defense counsel’s opening statement, standing alone, did not open the door to the plaintiff’s impeachment evidence. The court based its holding on an opening statement’s limited purpose, which is merely to “inform the fact finder of the evidence which may be offered to support the claims of the parties.”
Another division of the Court of Appeals addressed this issue again in 2010. In People v. Davis, the Court of Appeals held “defense counsel may open the door to questions concerning the method of interrogation by detective and the motives of witnesses to change their testimony by raising those issues in an opening statement.” The court looked to other jurisdictions for guidance and found a split. It sided with jurisdictions holding an opening statement can open the door to otherwise inadmissible evidence. Because an opening statement “advis[es] the jury of evidence that counsel intends to produce” the court reasoned an opening statement should be treated “like other stages of trial.”