inference defense in Colorado

2018Such a scenario makes no sense, logistically or logically. ¶ 157 Indeed, consistent with such a strategy, barely one page into defense counsel’s closing argument he said, “[t]here are so many conflicts in her testimony, and so many embellishments as time goes on, that it raises reasonable doubt all by themselves.” See People v. Bondsteel, 2015 COA 165, ¶ 130 (“[T]he record creates a strong inference that defense counsel did not object to these statements as a matter of strategy rather than due to inadvertence.”) (cert. granted Oct. 31, 2016).

2018See United States v. Smith, 531 F.3d 1261, 1267 (10th Cir. 2008) (finding waiver where counsel not only represented that he had no objection to the admission of certain evidence but also relied on the evidence); People v. Bondsteel, 2015 COA 165, ¶ 130 (“We decline to review the [DNA] match statements for plain error because . . . the record creates a strong inference that defense counsel did not object to these statements as a matter of strategy rather than due to inadvertence.”) (cert. granted Oct. 31, 2016).

2015Otherwise, defense counsel could remain silent as a matter of strategy, "gamble on a favorable verdict and, upon the coming in of an adverse one, seek a second bite of the apple on the basis of plain error." Hudgins v. Serrano, 186 N.J.Super. 465 , 453 A.2d 218 , 221 (App.Div.1982) (citation omitted); see also People v. Fichtner, 869 P.2d 539 , 543 (Colo. 1994) (requiring a contemporaneous objection discourages litigants from "gambling for favorable verdicts and then resorting to appeal on errors that might have easily been corrected by objection at trial") (citation omitted). ¶ 130 We decline

2015Ct. App. Div. 1982) (citation omitted); see also People v. Fichtner , 869 P.2d 539, 543 (Colo. 1994) (requiring a contemporaneous objection discourages litigants from “gambling for favorable verdicts and then resorting to appeal on errors that might have easily been corrected by objection at trial”) (citation omitted). ¶130 We decline to review the match statements for plain error because, for the following reasons, the record creates a strong inference that defense counsel did not object to these statements as a matter of strategy rather than due to inadvertence. ¶131 First, counsel conducted

2018See United States v. Smith, 531 F.3d 1261, 1267 (10th Cir. 2008) (finding waiver where counsel not only represented that he had no objection to the admission of certain evidence but also relied on the evidence); People v. Bondsteel, 2015 COA 165, ¶ 130 (“We decline to review the [DNA] match statements for plain error because . . . the record creates a strong inference that defense counsel did not object to these statements as a matter of strategy rather than due to inadvertence.”) (cert. granted Oct. 31, 2016).

2016Miller v. State , 312 P.3d 1112, 1115 (Alaska Ct. App. 2013). ¶33 With only this much for guidance, one might ask whether adopting the Attorney General’s default suggestion of plain error review would allow Rail to “have his cake and eat it too.” People v. Eppens , 979 P.2d 14, 22 (Colo. 1999) (citation omitted); see People v. Bondsteel , 2015 COA 165, ¶130 (declining plain error review because “the record creates a strong inference that defense counsel did not object . . . as a matter of strategy”). 6 But the picture would be incomplete without considering another division’s decision in an an

2016Miller v. State , 312 P.3d 1112, 1115 (Alaska Ct. App. 2013). ¶33 With only this much for guidance, one might ask whether adopting the Attorney General’s default suggestion of plain error review would allow Rail to “have his cake and eat it too.” People v. Eppens , 979 P.2d 14, 22 (Colo. 1999) (citation omitted); see People v. Bondsteel , 2015 COA 165, ¶130 (declining plain error review because “the record creates a strong inference that defense counsel did not object . . . as a matter of strategy”). 6 But the picture would be incomplete without considering another division’s decision in an an

2016Miller v. State , 312 P.3d 1112, 1115 (Alaska Ct. App. 2013). ¶33 With only this much for guidance, one might ask whether adopting the Attorney General’s default suggestion of plain error review would allow Rail to “have his cake and eat it too.” People v. Eppens , 979 P.2d 14, 22 (Colo. 1999) (citation omitted); see People v. Bondsteel , 2015 COA 165, ¶130 (declining plain error review because “the record creates a strong inference that defense counsel did not object . . . as a matter of strategy”). 6 But the picture would be incomplete without considering another division’s decision in an an

2014See Pfantz v. Kmart Corp., 85 P.3d 564, 568 (Colo.App.2003) (expressing no opinion on "any difference between a presumption and an inference"). .

2009Co., 82 Ohio St.3d 426 , 696 N.E.2d 1001, 1008 (1998) (finding predominance requirement for certification met and allowing an inference or presumption of reliance on a non-disclosure of a material fact) with Sikes v. Teleline, Inc., 281 F.3d 1350, 1363 (11th Cir.2002) ("'The securities market presents a wholly different context than a consumer fraud case, and neither this circuit nor the Supreme Court has extended a presumption of reliance outside the context of securities cases."), abrogated on other grounds by Bridge v. Phoenix Bond & Indem.

2009Co., 82 Ohio St.3d 426 , 696 N.E.2d 1001, 1008 (1998) (finding predominance requirement for certification met and allowing an inference or presumption of reliance on a non-disclosure of a material fact) with Sikes v. Teleline, Inc., 281 F.3d 1350, 1363 (11th Cir.2002) ("'The securities market presents a wholly different context than a consumer fraud case, and neither this circuit nor the Supreme Court has extended a presumption of reliance outside the context of securities cases."), abrogated on other grounds by Bridge v. Phoenix Bond & Indem.

2009Co., 82 Ohio St.3d 426 , 696 N.E.2d 1001, 1008 (1998) (finding predominance requirement for certification met and allowing an inference or presumption of reliance on a non-disclosure of a material fact) with Sikes v. Teleline, Inc., 281 F.3d 1350, 1363 (11th Cir.2002) ("'The securities market presents a wholly different context than a consumer fraud case, and neither this circuit nor the Supreme Court has extended a presumption of reliance outside the context of securities cases."), abrogated on other grounds by Bridge v. Phoenix Bond & Indem.

2009Co., - U.S. -, 128 S.Ct. 2131 , 170 L.Ed.2d 1012 (2008); Philip Morris, Inc. v. Angeletti, 358 Md. 689 , 752 A.2d 200, 234-36 (2000) (reasoning that because class members with claims under state's consumer protection act would have to individually prove reliance on defendant's alleged misrepresentations and material omissions, class certification was inappropriate); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex.2002) (refusing to adopt class-wide presumption of reliance on misrepresentations made by defendant where it found "no evidence that purchasers actually did rely on [defendant's]

2009Co., - U.S. -, 128 S.Ct. 2131 , 170 L.Ed.2d 1012 (2008); Philip Morris, Inc. v. Angeletti, 358 Md. 689 , 752 A.2d 200, 234-36 (2000) (reasoning that because class members with claims under state's consumer protection act would have to individually prove reliance on defendant's alleged misrepresentations and material omissions, class certification was inappropriate); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex.2002) (refusing to adopt class-wide presumption of reliance on misrepresentations made by defendant where it found "no evidence that purchasers actually did rely on [defendant's]

2000See Lynch, 783 P.2d at 850 .

1998See id.; see also Morgan, 837 P.2d at 304 (finding that the inference standard for future pain and suffering was satisfied by the victim’s testimony of pain and one of the victim’s treating physician’s testimony that the pain would continue into the future).

1998See id.; see also Morgan, 837 P.2d at 304 (finding that the inference standard for future pain and suffering was satisfied by the victim’s testimony of pain and one of the victim’s treating physician’s testimony that the pain would continue into the future).