invited error in Utah

2025I think, takes care of most of the . . . special verdict form . . . and unanimity.” She then said, “I think the only issue left from my perspective is unanimity as it relates to theories of consent.” (Emphasis added.) ¶111 Under the invited error doctrine, courts will not analyze a claim “when counsel, either by statement or act, affirmatively represented” to the district court that “he or she had no objection to the proceedings.” State v. Winfield, 2006 UT 4, ¶ 14 , 128 P.3d 1171 (quotation simplified).

2025I think, takes care of most of the . . . special verdict form . . . and unanimity.” She then said, “I think the only issue left from my perspective is unanimity as it relates to theories of consent.” (Emphasis added.) ¶111 Under the invited error doctrine, courts will not analyze a claim “when counsel, either by statement or act, affirmatively represented” to the district court that “he or she had no objection to the proceedings.” State v. Winfield, 2006 UT 4, ¶ 14 , 128 P.3d 1171 (quotation simplified).

2014"The doctrine of invited error bars review for plain error when the defendant led the trial court to believe that there was nothing wrong with the instruction," State v. Binkerd, 2013 UT App 216, ¶ 21 , 310 P.3d 755 (citation and internal quotation marks omitted), which includes situations in which the defendant proposed the jury instruction he challenges on appeal, see State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991) (citing invited error grounds in refusing to consider the defendant's arguments challenging the correctness of a jury instruction that defense counsel submitted to the tri

2014Indeed, our case law favors application of the invited error rule even "where invited error butts up against manifest injustice." Perdue, 813 P.2d at 1206 .

2023However, Johnson’s argument on this point fails under the doctrine of invited error. ¶38 Our supreme court has directed that “if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction, [appellate courts] will not review the instruction under the manifest injustice exception.” State v. Hamilton, 2003 UT 22, ¶ 54 , 70 P.3d 111 .

2023However, Johnson’s argument on this point fails under the doctrine of invited error. ¶38 Our supreme court has directed that “if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction, [appellate courts] will not review the instruction under the manifest injustice exception.” State v. Hamilton, 2003 UT 22, ¶ 54 , 70 P.3d 111 .

2018An error is prejudicial when "absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." Dunn , 850 P.2d at 1208 -09 . ¶58 Even assuming that the admission of the rule 404(b) evidence-Sister's testimony-was both erroneous and harmful, trial counsel invited any error by stipulating before trial "that [the rule 404(b) ] evidence will be reciprocal in each case. [E]ach victim will testify in the other victim's case." "The doctrine of invited error prohibits a party from setting up an error

2017An error is prejudicial when “absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” Dunn, 850 P.2d at 1208-09 . ¶58 Even assuming that the admission of the rule 404(b) evidence — Sister’s testimony — was both erroneous and harmful, trial counsel invited any error by stipulating before trial “that [the rule 404(b)] evidence will be reciprocal in each case. [E]ach victim will testify in the other victim’s case.” “The doctrine of invited error prohibits a party from setting up an erro

2011See generally Geukgeuzian, 2004 UT 16, ¶ 12 , 86 P.3d 742 (stating that the error was invited where the defendant's proposed instruction contained the same error as the instruction adopted by the trial court because by submitting the instruction, the defendant "affirmatively purported to list all `essential elements'"); State v. Anderson, 929 P.2d 1107, 1108-09 (Utah 1996) (determining instructional error was invited where defense counsel failed to object even when specifically asked). ¶ 13 Invited error does not, however, preclude our review of a claim of ineffective assistance of counsel.

2010It also "`fortifies our long-established policy that the trial court should have the first opportunity to address a claim of error.'" Hamilton, 2003 UT 22, ¶ 54 , 70 P.3d 111 (quoting Anderson, 929 P.2d at 1109 ). ¶ 24 Although no Utah case has yet applied the invited error doctrine to a change of venue challenge, the supreme court applied the doctrine to a claim of error during voir dire in State v. Winfield, 2006 UT 4 , 128 P.3d 1171 .

2016R. 15.5(a)(8). ¶18 On appeal, Cruz contends that “the district court’s findings on the reliability and trustworthiness of the videotapes are truncated and should be reversed for clear error.” He maintains that several factors weighed against reliability, such as Child’s age and maturity; the “nature and duration of [the] abuse,” including Child’s exposure to adult sexual conduct in the home; lack of detail; and evidence of “coaching.” ¶19 The State responds that in the trial court, Cruz invited the error he now alleges on appeal, that Cruz fails to marshal the evidence supporting the trial cou

2016R. 15.5(a)(8). ¶18 On appeal, Cruz contends that “the district court’s findings on the reliability and trustworthiness of the videotapes are truncated and should be reversed for clear error.” He maintains that several factors weighed against reliability, such as Child’s age and maturity; the “nature and duration of [the] abuse,” including Child’s exposure to adult sexual conduct in the home; lack of detail; and evidence of “coaching.” ¶19 The State responds that in the trial court, Cruz invited the error he now alleges on appeal, that Cruz fails to marshal the evidence supporting the trial cou

2020However, we do not consider the merits of this claim because Thornock invited any error. ¶25 The invited error doctrine precludes our review “when counsel, either by statement or act, affirmatively represented to the trial court that he or she had no objection to the proceedings.” Pratt v. Nelson, 2007 UT 41, ¶ 16 , 164 P.3d 366 (quotation simplified).

2020However, we do not consider the merits of this claim because Thornock invited any error. ¶25 The invited error doctrine precludes our review “when counsel, either by statement or act, affirmatively represented to the trial court that he or she had no objection to the proceedings.” Pratt v. Nelson, 2007 UT 41, ¶ 16 , 164 P.3d 366 (quotation simplified).

2024And her counsel was actively participating in the proceedings and raised the possible error he perceived at the time of its occurrence. ¶35 We acknowledge that a decision to not apply the invited error doctrine in this circumstance may undermine the other purposes of the doctrine, including to encourage counsel to raise any possible error at the time of its occurrence and to thereby fortify the “long-established policy that the district court should have the first opportunity to address a claim of error,” Moa, 2012 UT 28, ¶ 25 (cleaned up)—the identical judicial economy purposes that undergird

2019State v. Moa, 2012 UT 28 , ¶¶ 23–27, 282 P.3d 985 (explaining that the invited error doctrine precludes plain error review). 3.

2026“Under the doctrine of invited error, an error is invited when counsel encourages the trial court to make an erroneous ruling.” State v. McNeil, 2016 UT 3, ¶ 17 , 365 P.3d 699 .

2026“Under the doctrine of invited error, an error is invited when counsel encourages the trial court to make an erroneous ruling.” State v. McNeil, 2016 UT 3, ¶ 17 , 365 P.3d 699 .

2017At best, Mr. Johnson’s trial counsel inadvertently proposed an erroneous instruction and failed to detect the error and object to it. 18 But the exceptional circumstances exception “requires something much more exceptional than mere oversight by trial counsel in failing to object.” State v. Irwin, 924 P.2d 5, 11 (Utah Ct. App. 1996); see also State v. Pullman, 2013 UT App 168, ¶ 27 , 306 P.3d 827 (rejecting the exceptional circumstances exception because the “ordinary trial errors” raised by the defendant on appeal, such as instructional error and the improper admission of evidence, were not “

2006Because we similarly acknowledge an exception to the preservation rule for exceptional circumstances "where a change in law or the settled interpretation of law colored the failure to have raised an issue at trial,” State v. Irwin, 924 P.2d 5, 10 (Utah Ct.App.1996), we do not apply the invited error doctrine here. 2 .

2016R. 15.5(a)(8). ¶18 On appeal, Cruz contends that “the district court’s findings on the reliability and trustworthiness of the videotapes are truncated and should be reversed for clear error.” He maintains that several factors weighed against reliability, such as Child’s age and maturity; the “nature and duration of [the] abuse,” including Child’s exposure to adult sexual conduct in the home; lack of detail; and evidence of “coaching.” ¶19 The State responds that in the trial court, Cruz invited the error he now alleges on appeal, that Cruz fails to marshal the evidence supporting the trial cou

2016R. 15.5(a)(8). ¶18 On appeal, Cruz contends that “the district court’s findings on the reliability and trustworthiness of the videotapes are truncated and should be reversed for clear error.” He maintains that several factors weighed against reliability, such as Child’s age and maturity; the “nature and duration of [the] abuse,” including Child’s exposure to adult sexual conduct in the home; lack of detail; and evidence of “coaching.” ¶19 The State responds that in the trial court, Cruz invited the error he now alleges on appeal, that Cruz fails to marshal the evidence supporting the trial cou

2019In this vein, there is “a distinction between affirmative actions to initiate the error and merely acquiescing to the error.” See State v. McNeil, 2016 UT 3, ¶ 18 , 365 P.3d 699 (quotation simplified); see also State v. Marquina, 2018 UT App 219, ¶ 23 , 437 P.3d 628 (noting that our supreme court “has previously rejected attempts to broaden the scope of the invited error doctrine beyond this affirmative-representation model”), cert. granted, 440 P.3d 691 (Utah 2019).

2019In this vein, there is “a distinction between affirmative actions to initiate the error and merely acquiescing to the error.” See State v. McNeil, 2016 UT 3, ¶ 18 , 365 P.3d 699 (quotation simplified); see also State v. Marquina, 2018 UT App 219, ¶ 23 , 437 P.3d 628 (noting that our supreme court “has previously rejected attempts to broaden the scope of the invited error doctrine beyond this affirmative-representation model”), cert. granted, 440 P.3d 691 (Utah 2019).

2017The invited error doctrine is triggered where counsel — or a pro se litigant — “either by statement or act, affirmatively represent^] to the [trial] court that he or she had no objection to the [proceedings].” Id, ¶ 16 (second and third alterations in original) (citation and internal quotation marks omitted); see also State v. Cooper, 2011 UT App 234, ¶¶ 11-12 , 261 P.3d 653 (concluding that the invited error doctrine applies to pro se litigants).

2017The invited error doctrine is triggered where counsel — or a pro se litigant — “either by statement or act, affirmatively represent^] to the [trial] court that he or she had no objection to the [proceedings].” Id, ¶ 16 (second and third alterations in original) (citation and internal quotation marks omitted); see also State v. Cooper, 2011 UT App 234, ¶¶ 11-12 , 261 P.3d 653 (concluding that the invited error doctrine applies to pro se litigants).

2016See State v. Anderson, 929 P.2d 1107, 1109 (Utah 1996); State v. Bullock, 791 P.2d 155, 158-59 (Utah 1989).

2016See State v. Anderson, 929 P.2d 1107, 1109 (Utah 1996); State v. Bullock, 791 P.2d 155 , 158–59 (Utah 1989).

2019See generally Kerr v. Salt Lake City , 2013 UT 75 , ¶ 44, 322 P.3d 669 ("The invited error doctrine prevents a party from taking advantage of an error committed at trial when that party led the trial court into committing the error.") (quotation simplified). 10 At oral argument, Cypress clarified that, in making its rule 59(a)(7) argument, it relied exclusively on evidence presented by Cougar at trial, thus avoiding any duty to marshal the evidence supporting the verdict in making its argument. 11 Cypress seeks an award of attorney fees on appeal.

2019See generally Kerr v. Salt Lake City , 2013 UT 75 , ¶ 44, 322 P.3d 669 ("The invited error doctrine prevents a party from taking advantage of an error committed at trial when that party led the trial court into committing the error.") (quotation simplified). 10 At oral argument, Cypress clarified that, in making its rule 59(a)(7) argument, it relied exclusively on evidence presented by Cougar at trial, thus avoiding any duty to marshal the evidence supporting the verdict in making its argument. 11 Cypress seeks an award of attorney fees on appeal.

2019In this vein, there is “a distinction between affirmative actions to initiate the error and merely acquiescing to the error.” See State v. McNeil, 2016 UT 3, ¶ 18 , 365 P.3d 699 (quotation simplified); see also State v. Marquina, 2018 UT App 219, ¶ 23 , 437 P.3d 628 (noting that our supreme court “has previously rejected attempts to broaden the scope of the invited error doctrine beyond this affirmative-representation model”), cert. granted, 440 P.3d 691 (Utah 2019).

2019See State v. Marquina , 2018 UT App 219 , ¶¶ 23-24, 437 P.3d 628 , cert. granted , 440 P.3d 691 (Utah 2019).

2013See Tschaggeny, 2007 UT 37, ¶¶ 20, 23 , 163 P.3d 615 (litigants may not retain both the strategic benefit afforded at trial by an invited error and the benefit of appellate review should the strategy fail). ¶ 47 Finally, Salt Lake City argues the trial court erred by excluding part of Mr. Jarman’s testimony because his testimony “was important for establishing how the city responds to calls about sidewalks.” In addition to barring Mr. Jarman from giving his opinion that the displacement was dangerous, the court ruled that Mr. Jarman “may not offer — and no questions should be asked that would

2013See Tschaggeny, 2007 UT 37, ¶¶ 20, 23 , 163 P.3d 615 (litigants may not retain both the strategic benefit afforded at trial by an invited error and the benefit of appellate review should the strategy fail). ¶ 47 Finally, Salt Lake City argues the trial court erred by excluding part of Mr. Jarman’s testimony because his testimony “was important for establishing how the city responds to calls about sidewalks.” In addition to barring Mr. Jarman from giving his opinion that the displacement was dangerous, the court ruled that Mr. Jarman “may not offer — and no questions should be asked that would

2026And under the invited error doctrine, a party cannot obtain relief on appeal when the party had “manifest[ed] some sort of affirmative representation to the trial court that the court [was] proceeding appropriately.” State v. Popp, 2019 UT App 173, ¶ 23 , 453 P.3d 657 .

2026And under the invited error doctrine, a party cannot obtain relief on appeal when the party had “manifest[ed] some sort of affirmative representation to the trial court that the court [was] proceeding appropriately.” State v. Popp, 2019 UT App 173, ¶ 23 , 453 P.3d 657 .

2011See State v. Lee, 2006 UT 5, ¶ 20 , 128 P.3d 1179 (applying the invited error doctrine to a claim that the trial court erred by not removing certain jurors for cause when counsel had approved the jury as selected); State v. Winfield, 2006 UT 4 , ¶ 17 & n. 3, 128 P.3d 1171 (applying the invited error doctrine to a claim that the court failed to adequately probe prospective jurors for bias when counsel passed the jury for cause).

2011See State v. Lee, 2006 UT 5, ¶ 20 , 128 P.3d 1179 (applying the invited error doctrine to a claim that the trial court erred by not removing certain jurors for cause when counsel had approved the jury as selected); State v. Winfield, 2006 UT 4 , ¶ 17 & n. 3, 128 P.3d 1171 (applying the invited error doctrine to a claim that the court failed to adequately probe prospective jurors for bias when counsel passed the jury for cause).

2019Alires also raises issues concerning the sufficiency of the evidence of sexual intent and the absence of a jury instruction defining “indecent liberties.” Because we vacate Alires’s convictions on other grounds and it is uncertain whether these issues will arise again on remand, see infra note 7, we do not “exercise our discretion to address those issues for purposes of providing guidance on remand.” State v. Low, 2008 UT 58, ¶ 61 , 192 P.3d 867 ; see also State v. Barela, 2015 UT 22, ¶ 35 , 349 P.3d 676 (concluding that “[w]e need not and do not reach the factual question of the sufficiency o

2019Alires also raises issues concerning the sufficiency of the evidence of sexual intent and the absence of a jury instruction defining “indecent liberties.” Because we vacate Alires’s convictions on other grounds and it is uncertain whether these issues will arise again on remand, see infra note 7, we do not “exercise our discretion to address those issues for purposes of providing guidance on remand.” State v. Low, 2008 UT 58, ¶ 61 , 192 P.3d 867 ; see also State v. Barela, 2015 UT 22, ¶ 35 , 349 P.3d 676 (concluding that “[w]e need not and do not reach the factual question of the sufficiency o

2025The doctrine of invited error therefore can preclude even plain error review.” (cleaned up)); McNeil, 2013 UT App 134, ¶ 24 (stating that “invited error precludes appellate review of an issue,” even under plain error review).

2018The invited error doctrine “discourages parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal,” and it also “gives the trial court the first opportunity to address [a] claim of error.” Id. (quotation simplified). “[I]nvited error precludes appellate review of an issue.” State v. McNeil, 2013 UT App 134, ¶ 24 , 302 P.3d 844 , aff’d, 2016 UT 3 , 365 P.3d 699 .

2024But “under the doctrine of invited error, we have declined to engage in even plain error rule on it.” State v. Johnson, 2017 UT 76, ¶ 15 , 416 P.3d 443 (cleaned up).

2024But “under the doctrine of invited error, we have declined to engage in even plain error rule on it.” State v. Johnson, 2017 UT 76, ¶ 15 , 416 P.3d 443 (cleaned up).

2017Under the doctrine of invited error, “where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court need not consider the party’s objection to that action on appeal.” State v. Moa, 2012 UT 28, ¶ 27 , 282 P.3d 985 ; see also State v. Alfatlawi, 2006 UT App 511, ¶ 26 , 153 P.3d 804 (explaining that when an error is invited, “a party on appeal cannot take advantage of [that] error committed at trial when that party led the trial court into committing the error” (citation and internal quotation marks omitted)).

2017Under the doctrine of invited error, “where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court need not consider the party’s objection to that action on appeal.” State v. Moa, 2012 UT 28, ¶ 27 , 282 P.3d 985 ; see also State v. Alfatlawi, 2006 UT App 511, ¶ 26 , 153 P.3d 804 (explaining that when an error is invited, “a party on appeal cannot take advantage of [that] error committed at trial when that party led the trial court into committing the error” (citation and internal quotation marks omitted)).