forfeiture rule in Colorado

2015Consistent with Olano , our supreme court has said, "[f]inally, we review all other errors, constitutional and nonconstitutional, that were not preserved by objection for plain error." *779 Hagos v. People , 2012 CO 63 , ¶ 14, 288 P.3d 116 (emphasis added). ¶ 76 Everyone would also agree that the forfeiture rule does not bar appellate review. "[A]ll jurisdictions recognize one or more situations in which issues not raised below will be considered on appeal." LaFave, Criminal Procedure at § 27.5(c).

2015Consistent with Olano , our supreme court has said, "[f]inally, we review all other errors, constitutional and nonconstitutional, that were not preserved by objection for plain error." *779 Hagos v. People , 2012 CO 63 , ¶ 14, 288 P.3d 116 (emphasis added). ¶ 76 Everyone would also agree that the forfeiture rule does not bar appellate review. "[A]ll jurisdictions recognize one or more situations in which issues not raised below will be considered on appeal." LaFave, Criminal Procedure at § 27.5(c).

2015Under this standard, often described as the forfeiture rule, " 'a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " United States v. Olano, 507 U.S. 725 , 731, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (emphasis added) (quoting Yakus v. United States, 321 U.S. 414 , 444, 64 S.Ct. 660 , 88 L.Ed. 834 (1944) ).

2015Under this standard, often described as the forfeiture rule, " 'a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " United States v. Olano, 507 U.S. 725 , 731, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (emphasis added) (quoting Yakus v. United States, 321 U.S. 414 , 444, 64 S.Ct. 660 , 88 L.Ed. 834 (1944) ).

2015Nor did it cite any out-of-state authority holding that sufficiency claims should be exempted. ¶ 79 Instead, the sole explanation offered in Morse, 168 Colo. at 498 , 452 P.2d at 5 , was that the sufficiency claim could be "adequately reviewed on the basis of the record." This explanation reflects only that an appellate court may, in the interest of judicial economy, exercise its discretion to review an unpreserved claim, where the court can do so on the existing record .

2015Nor did it cite any out-of-state authority holding that sufficiency claims should be exempted. ¶ 79 Instead, the sole explanation offered in Morse, 168 Colo. at 498 , 452 P.2d at 5 , was that the sufficiency claim could be "adequately reviewed on the basis of the record." This explanation reflects only that an appellate court may, in the interest of judicial economy, exercise its discretion to review an unpreserved claim, where the court can do so on the existing record .

2007It characterized the doctrine as coming into play "[wlhen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims. ..." Davis, 126 S.Ct. at 2280 .

2007Perhaps most revealing with regard to its purpose, however, the Court acknowledged that the Roberts approach to the Confrontation Clause made recourse to the forfeiture doctrine less necessary, for the reason that "prosecutors could show the 'reliability' of ex parte statements more easily than they could show the defendant's procurement of the witness's absence." Id.

1990The ALJ further found that insofar as the equitable defenses of waiver, estoppel, and laches may be available to bar termination of the benefits pursuant to the forfeiture rule established in In re Death of Peterkin, 729 P.2d 977 (Colo.1986), they were not applicable in this case.

1983In Horton v. Hedberg, 143 Colo. 62 , 351 P.2d 843 (1960), which involved a note given in place of a cash down payment, our Supreme Court stated: *261 “Had the buyers deposited cash rather than their promise to pay upon execution of the option, there can be no question but that the forfeiture clause would be operative as against a claim for refund.

1983In Horton v. Hedberg, 143 Colo. 62 , 351 P.2d 843 (1960), which involved a note given in place of a cash down payment, our Supreme Court stated: *261 “Had the buyers deposited cash rather than their promise to pay upon execution of the option, there can be no question but that the forfeiture clause would be operative as against a claim for refund.

1964In Hutchinson v. Elder, 140 Colo. 379 , 344 P.2d 1090 , the court said: “An interpretation which makes the contract or agreement fair and reasonable will be preferred to one which leads to a harsh or unreasonable result.” That would seem to be the appropriate construction to place upon this contract, assuming that the forfeiture clause can, on any theory, be sustained.

1964In Hutchinson v. Elder, 140 Colo. 379 , 344 P.2d 1090 , the court said: “An interpretation which makes the contract or agreement fair and reasonable will be preferred to one which leads to a harsh or unreasonable result.” That would seem to be the appropriate construction to place upon this contract, assuming that the forfeiture clause can, on any theory, be sustained.

1957In re Ebbs, supra. It was held in State v. Burnett, 184 N.C. 783 , 115 S.E. 57, 58 , in a case involving a liquor violation, as follows: "The Polk County Act provides that upon conviction for manufacturing liquor, the convicted person may be imprisoned in the penitentiary.

1957In re Ebbs, supra. It was held in State v. Burnett, 184 N.C. 783 , 115 S.E. 57, 58 , in a case involving a liquor violation, as follows: "The Polk County Act provides that upon conviction for manufacturing liquor, the convicted person may be imprisoned in the penitentiary.

1957It was said of a statutory provision similar to our constitutional provision, "I think it quite clear that the disqualification created by this statute is consequent only upon a conviction in this state." Sims v. Sims, supra, cited with approval in the Laska case, supra. In a disbarment proceeding the Supreme Court of North Carolina was called upon to determine whether a conviction in a federal court in Louisiana of forging certain receipts worked a forfeiture of the privilege to practise law where the statute provided [ 150 N.C. 44 , 63 S.E. 192 ] "That an attorney at law must be disbarred an

1952We have no such situation shown here as in Boulder and Weld County Ditch Co. v. Lower Boulder Ditch Co., 22 Colo. 115 , 43 Pac. 540 , where the parties attacking the decree had participated in its benefits and accepted its fruits by using the water therein decreed to them, or as in Hinderlider, State Engineer v. Town of Berthoud, 77 Colo. 504 , 238 Pac. 64 , where a party sought to accept the favorable provisions of a decree and at the same time nullify a forfeiture clause included without jurisdiction.

1952We have no such situation shown here as in Boulder and Weld County Ditch Co. v. Lower Boulder Ditch Co., 22 Colo. 115 , 43 Pac. 540 , where the parties attacking the decree had participated in its benefits and accepted its fruits by using the water therein decreed to them, or as in Hinderlider, State Engineer v. Town of Berthoud, 77 Colo. 504 , 238 Pac. 64 , where a party sought to accept the favorable provisions of a decree and at the same time nullify a forfeiture clause included without jurisdiction.

1952We have no such situation shown here as in Boulder and Weld County Ditch Co. v. Lower Boulder Ditch Co., 22 Colo. 115 , 43 Pac. 540 , where the parties attacking the decree had participated in its benefits and accepted its fruits by using the water therein decreed to them, or as in Hinderlider, State Engineer v. Town of Berthoud, 77 Colo. 504 , 238 Pac. 64 , where a party sought to accept the favorable provisions of a decree and at the same time nullify a forfeiture clause included without jurisdiction.

1939Smith v. Root, 66 W.