EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Thursday, September 11, 2008

Real Error, Real Fast: Utah Judge Uses Invited Error Doctrine To Deny New Trial In Fazoli's Trial

A recent case from Utah gives me my third recent opportunity to address the invited error doctrine (for previous posts, click here and here).  In that case, former Fazoli's restaurant manager J.W. Craig Lamoreaux was convicted by a jury in March of one felony count of attempted forcible sex abuse for allegedly putting his hand down the pants of and making sexual advances toward a 17-year-old female employee in March 2007.  During trial, defense counsel introduced into evidence a DVD-recorded interview of the victim during which she told police that Lamoreaux had mentioned he was transferred from the Orem store to the Provo store because of other flirtatious acts.  Defense counsel later, however, rebutted this allegation through an affidavit from a regional manager, who said that no harassment had occurred in Orem.  Instead, according to defense counsel, Lamoreaux was transferred because of a paperwork issue.

And when defense counsel pressed this theory of Lamoreaux's previous transfer during closing arguments, the prosecution rebutted it by referencing the alleged victim's statements in the DVD-recorded interview.  After Lamoreaux was convicted, defense counsel argued that he was entitled to a new trial because the prosecutor improperly referred to the alleged victim's hearsay statements in his closing argument.  Moreover, I would add that the alleged victim's statement should have been inadmissible not only on hearsay grounds, but also on the ground that it constituted improper propensity character evidence.

But while the alleged victim's statement thus should not have been introduced into evidence, the problem for Lamoreaux was that his counsel, and not the prosecution, introduced it into evidence.  Thus, 4th District Judge Claudia Laycock found that a new trial was not warranted because "[i]f it was error, it was invited error brought in by the defense" and "[p]rosecutors had every right to comment on testimony that had come in without any objection."  More specifically, the defendant "was the one who introduced it into evidence, not the state, and when this statement came up ... on the tape, it is his obligation to deal with it."  I agree with the judge's conclusion because this was a classic case of a party inviting the court to commit an error, meaning that the party had no grounds to complain after that invitation was accepted.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/09/hearsay-closing.html

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