impact error in Colorado

1992I would therefore hold that the denial of the defendant's right to be present during jury instructions and closing arguments is more closely akin to a "structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself," id. ___ U.S. at ___, 111 S.Ct. at 1265 ; see Arave, 977 F.2d at 480 (holding that one "reason why unconstitutional in absentia sentencing constitutes `structural error' [under Fulminante ] is our inability to determine accurately the impact of the error on the outcome of the proceeding"), and that, therefore, the

1992I would therefore hold that the denial of the defendant's right to be present during jury instructions and closing arguments is more closely akin to a "structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself," id. ___ U.S. at ___, 111 S.Ct. at 1265 ; see Arave, 977 F.2d at 480 (holding that one "reason why unconstitutional in absentia sentencing constitutes `structural error' [under Fulminante ] is our inability to determine accurately the impact of the error on the outcome of the proceeding"), and that, therefore, the

2005See, e.g., Jon Wool & Don Stemen, "Aggravated Sentencing: Blakely v. Washington; Practical Implications for State Sentencing Systems," Policy and Practice Review 1 (Aug.2004); State v. Brown, 209 Ariz. 200 , 99 P.3d 15 (2004)(finding sentence imposed beyond the presumptive range and in the "super-aggravated" range based on facts found by judge alone violated Blakely ); State v. Rivera, 106 Hawai'i 146 , 102 P.3d 1044 (2004)(finding sentence imposed under "indeterminate" sentencing scheme, in which the judge imposes sentencing floor and ceiling within statutory limits and parole board determine

2005See, e.g., Jon Wool & Don Stemen, "Aggravated Sentencing: Blakely v. Washington; Practical Implications for State Sentencing Systems," Policy and Practice Review 1 (Aug.2004); State v. Brown, 209 Ariz. 200 , 99 P.3d 15 (2004)(finding sentence imposed beyond the presumptive range and in the "super-aggravated" range based on facts found by judge alone violated Blakely ); State v. Rivera, 106 Hawai'i 146 , 102 P.3d 1044 (2004)(finding sentence imposed under "indeterminate" sentencing scheme, in which the judge imposes sentencing floor and ceiling within statutory limits and parole board determine

2005See, e.g., Jon Wool & Don Stemen, "Aggravated Sentencing: Blakely v. Washington; Practical Implications for State Sentencing Systems," Policy and Practice Review 1 (Aug.2004); State v. Brown, 209 Ariz. 200 , 99 P.3d 15 (2004)(finding sentence imposed beyond the presumptive range and in the "super-aggravated" range based on facts found by judge alone violated Blakely ); State v. Rivera, 106 Hawai'i 146 , 102 P.3d 1044 (2004)(finding sentence imposed under "indeterminate" sentencing scheme, in which the judge imposes sentencing floor and ceiling within statutory limits and parole board determine

2005See, e.g., Jon Wool & Don Stemen, "Aggravated Sentencing: Blakely v. Washington; Practical Implications for State Sentencing Systems," Policy and Practice Review 1 (Aug.2004); State v. Brown, 209 Ariz. 200 , 99 P.3d 15 (2004)(finding sentence imposed beyond the presumptive range and in the "super-aggravated" range based on facts found by judge alone violated Blakely ); State v. Rivera, 106 Hawai'i 146 , 102 P.3d 1044 (2004)(finding sentence imposed under "indeterminate" sentencing scheme, in which the judge imposes sentencing floor and ceiling within statutory limits and parole board determine

2005See, e.g., Jon Wool & Don Stemen, “Aggravated Sentencing: Blakely v. Washington; Practical Implications for State Sentencing Systems,” Policy and Practice Review 1 (Aug.2004); State v. Brown, 209 Ariz. 200 , 99 P.3d 15 (2004)(finding sentence imposed beyond the presumptive range and in the “super-aggravated” range based on facts found by judge alone violated Blakely); State v. Rivera, 106 Hawai'i 146 , 102 P.3d 1044 (2004)(finding sentence imposed under “indeterminate” sentencing scheme, in which the judge imposes sentencing floor and ceiling within statutory limits and parole board determines

2005See, e.g., Jon Wool & Don Stemen, "Aggravated Sentencing: Blakely v. Washington; Practical Implications for State Sentencing Systems," Policy and Practice Review 1 (Aug.2004); State v. Brown, 209 Ariz. 200 , 99 P.3d 15 (2004)(finding sentence imposed beyond the presumptive range and in the "super-aggravated" range based on facts found by judge alone violated Blakely ); State v. Rivera, 106 Hawai'i 146 , 102 P.3d 1044 (2004)(finding sentence imposed under "indeterminate" sentencing scheme, in which the judge imposes sentencing floor and ceiling within statutory limits and parole board determine

1987We stated that “a court should analyze the implications of the violation for the defendant’s prison rehabilitation program as well as the subsidiary concern of the impact of the violation on the defendant’s speedy trial rights.” People v. Higinbotham, 712 P.2d at 998 .

1986In People v. Higinbotham, 712 P.2d 993 (Colo.1986), we noted that a court should analyze the implications of a violation of the prompt notification requirement upon the defendant’s prison rehabilitation program as well as the subsidiary concern of the impact of the violation on the defendant’s speedy trial rights.

1985Towns v. Anderson, 195 Colo. 517 , 579 P.2d 1163 (1978).

1978Since the trial court's ruling on the above case, our Supreme Court has abolished the impact requirement in cases of negligently inflicted emotional distress when that distress results in serious physical manifestations, Towns v. Anderson, Colo., 579 P.2d 1163 (No. C 1290, announced June 12, 1978) and adopted as the better rule Restatement (Second) of Torts § 436(2) (1965).

2014Any assumption that onee a 'substantial right' is implicated it is inherently 'affected' by any error begs the question raised by Rule 52(a)."); id. at 474 , 106 S.Ct. 725 (Stevens, J., dissenting) (reasoning, much as we would do in Macran-der and Lefebre, that such bright-line rules should be retained where the impact of an error cannot be measured with precision), our case law failed to immediately appreciate or embrace this development. 120 Because the concept of structural error developed in the context of constitutional error, as a means of distinguishing those constitutional errors that

2014Any assumption that onee a 'substantial right' is implicated it is inherently 'affected' by any error begs the question raised by Rule 52(a)."); id. at 474 , 106 S.Ct. 725 (Stevens, J., dissenting) (reasoning, much as we would do in Macran-der and Lefebre, that such bright-line rules should be retained where the impact of an error cannot be measured with precision), our case law failed to immediately appreciate or embrace this development. 120 Because the concept of structural error developed in the context of constitutional error, as a means of distinguishing those constitutional errors that

2014If not before, at least by the Supreme Court's decision in Neder v. United States, 527 U.S. 1 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999), however, it had become clear that only this limited class of fundamental constitutional error, designated structural error, could "'defy analysis by "harmless error" standards."" Id. at 7 , 119 S.Ct. 1827 (quoting Pulminante, 499 U.S. at 309 , 111 S.Ct. 1246 ).

2014If not before, at least by the Supreme Court's decision in Neder v. United States, 527 U.S. 1 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999), however, it had become clear that only this limited class of fundamental constitutional error, designated structural error, could "'defy analysis by "harmless error" standards."" Id. at 7 , 119 S.Ct. 1827 (quoting Pulminante, 499 U.S. at 309 , 111 S.Ct. 1246 ).

2014Any assumption that onee a 'substantial right' is implicated it is inherently 'affected' by any error begs the question raised by Rule 52(a)."); id. at 474 , 106 S.Ct. 725 (Stevens, J., dissenting) (reasoning, much as we would do in Macran-der and Lefebre, that such bright-line rules should be retained where the impact of an error cannot be measured with precision), our case law failed to immediately appreciate or embrace this development. 120 Because the concept of structural error developed in the context of constitutional error, as a means of distinguishing those constitutional errors that

2014Any assumption that onee a 'substantial right' is implicated it is inherently 'affected' by any error begs the question raised by Rule 52(a)."); id. at 474 , 106 S.Ct. 725 (Stevens, J., dissenting) (reasoning, much as we would do in Macran-der and Lefebre, that such bright-line rules should be retained where the impact of an error cannot be measured with precision), our case law failed to immediately appreciate or embrace this development. 120 Because the concept of structural error developed in the context of constitutional error, as a means of distinguishing those constitutional errors that

2014Co. v. Patterson, 185 P.3d 811 (Colo.2008); nevertheless the impact of such a rule on cases like those before the court today is a reality that cannot be ignored. 4 48 Should the General Assembly continue to respond to statutory constructions with which it is dissatisfied on a piecemeal basis, rather than by providing a more systematic, and unambiguous, rationale for its waiver policy, this rule of construction will undoubtedly continue to dominate the resolution by both trial and appellate courts of individual challenges to immunity waiver.

2005While they disagree on the impact of this error on Auman’s convictions, both parties cite People v. Bornman, 953 P.2d 952 (Colo.App.1997), in their respective discussions of the error.

2005While they disagree on the impact of this error on Auman's convictions, both parties cite People v. Bornman, 953 P.2d 952 (Colo.App.1997), in their respective discussions of the error.

1986For example, in Dillon v. Legg, 68 Cal.2d 728 , 65 Cal.Rptr. 72 , 441 P.2d 912 (1968), the California Supreme Court court rejected the zone-of-danger rule in favor of a case-by-case approach based upon whether the defendant should reasonably foresee the injury to plaintiff or, in other words, whether defendant owes plaintiff a duty of due care even though plaintiff is in no way placed in jeopardy of an injury.

1986For example, in Dillon v. Legg, 68 Cal.2d 728 , 65 Cal.Rptr. 72 , 441 P.2d 912 (1968), the California Supreme Court court rejected the zone-of-danger rule in favor of a case-by-case approach based upon whether the defendant should reasonably foresee the injury to plaintiff or, in other words, whether defendant owes plaintiff a duty of due care even though plaintiff is in no way placed in jeopardy of an injury.

1977See, e. g., Hopper v. United States, 244 F.Supp. 314 (D.C.Colo.1965) (discussing a "foreseeability" test); Wallace v. Coca-Cola Bottling Plants, Inc., Me., 269 A.2d 117 (1970) (discussing the "objective symptomatology" test); Toms v. McConnell, 45 Mich. App. 647 , 207 N.W.2d 140 (1973) (discussing the "zone of danger" concept).

1977See, e. g., Hopper v. United States, 244 F.Supp. 314 (D.C.Colo.1965) (discussing a "foreseeability" test); Wallace v. Coca-Cola Bottling Plants, Inc., Me., 269 A.2d 117 (1970) (discussing the "objective symptomatology" test); Toms v. McConnell, 45 Mich. App. 647 , 207 N.W.2d 140 (1973) (discussing the "zone of danger" concept).

1977See, e. g., Hopper v. United States, 244 F.Supp. 314 (D.C.Colo.1965) (discussing a "foreseeability" test); Wallace v. Coca-Cola Bottling Plants, Inc., Me., 269 A.2d 117 (1970) (discussing the "objective symptomatology" test); Toms v. McConnell, 45 Mich. App. 647 , 207 N.W.2d 140 (1973) (discussing the "zone of danger" concept).

1977As is pointed out in Niederman v. Brodsky, 436 Pa. 401 , 261 A.2d 84 (1970): "While we agree that [medical impossibility of proving causation] might have been an appropriate conclusion . . . in the medical field when the impact doctrine was first announced in 1888, it would presently be inappropriate for us to ignore all of the phenomenal advances medical science has achieved in the last eighty years.

1977As is pointed out in Niederman v. Brodsky, 436 Pa. 401 , 261 A.2d 84 (1970): "While we agree that [medical impossibility of proving causation] might have been an appropriate conclusion . . . in the medical field when the impact doctrine was first announced in 1888, it would presently be inappropriate for us to ignore all of the phenomenal advances medical science has achieved in the last eighty years.

1977In overruling a prior decision which had adopted the impact requirement, the New York Court of Appeals aptly described the status of that concept in modern jurisprudence as follows: "[I]t has been thoroughly repudiated by the English courts which initiated it, rejected by a majority of American jurisdictions, abandoned by many which originally adopted it, and diluted, through numerous exceptions, in the minority which retained it." Battalla v. State, 10 N.Y.2d 237 , 219 N.Y.S.2d 34 , 176 N.E.2d 729 (1961).

1977In overruling a prior decision which had adopted the impact requirement, the New York Court of Appeals aptly described the status of that concept in modern jurisprudence as follows: "[I]t has been thoroughly repudiated by the English courts which initiated it, rejected by a majority of American jurisdictions, abandoned by many which originally adopted it, and diluted, through numerous exceptions, in the minority which retained it." Battalla v. State, 10 N.Y.2d 237 , 219 N.Y.S.2d 34 , 176 N.E.2d 729 (1961).