For the second time in eight years the Colorado Supreme Court granted certiorari to decide whether an opening 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.”
In People v. Pernell the court relied on Davis, acknowledging Melton and the jurisdictional split but holding defense counsel’s opening statement opened the door to hearsay testimony about a complaining witness’ statements to police. The Pernell division held this was an alternate basis for admitting the statements, which it found were erroneously admitted as excited utterances.
U.S. and Colorado Supreme Court precedent, judicial economy, and fundamental fairness call Colorado’s Supreme Court to resolve this split.
The U.S. Supreme Court recognizes an opening statement is not evidence and “has a narrow purpose and scope. When this limited purpose is considered with the Colorado Supreme Court’s past unwillingness to equate different parts of a trial that serve different purposes, an opening statement should not open the door to otherwise inadmissible evidence. And unlike those jurisdictions holding that an opening statement can open the door to otherwise inadmissible evidence, the Colorado Supreme Court has repeatedly held relevance is not the sine qua non for admissibility.
Opening statements are critically important. They are made at the start of trial when the fact finder is most open to a party’s theory. If counsel is unsure whether something said in an opening statement could open the door to otherwise inadmissible evidence, opening statements may not be as developed and informative as they could be. This is unhelpful to jurors trying to learn what they must decide.
In 2017, there were 5,758 court and jury trials in district courts and county courts across Colorado.
Thus, there are thousands of instances each year where litigants and trial courts are left to wonder whether something said in opening statement can open the door to otherwise inadmissible evidence. Efficiency and fairness call Colorado’s Supreme Court to resolve the split.
— Sean Lacefield is a associate at Berg Hill Greenleaf & Ruscitti