Colorado Standards of Review 101

Standards of review are the industry language for appellate attorneys. Trial attorneys are not as fluent in the standards of review, but we should be.

In simple terms, the standard of review is the level of deference given to the lower court by the reviewing court. The standard of review is important because it dictates the level of scrutiny applied to the ruling and thereby the likelihood of affirmance or reversal of a trial court decision.

As trial attorneys, we can empower the trial court judge to rule in our favor by articulating those decisions that fall within their discretion and are given significant deference by a reviewing court. Conversely, we can caution trial courts that, when the deference is low, an accurate application of the law reigns.  

Below is a list of the common standards of review and what they mean to your practice.

·       Question of Law- Reviewed De Novo

o   Translates to “from the beginning.”

o   The least deference given to lower court.

o   Review of trial court’s decision as to question of law and the application of law to facts.

o   Examples of application:

  • Meaning of a Plea Agreement. St. James v. People, 948 P.2d 1028, 1031 (Colo. 1997).

  • When no factual dispute exists, court’s subject matter jurisdiction. People v. C.O., 406 P.3d 853, 857 (Colo. 2017).

  • Statutory construction and interpretation. Trujillo v. Colo. Div. of Ins., 320 P.3d 1208 (Colo. 2014).

  • Whether a sentence is grossly disproportionate. Wells-Yates v. People, 454 P.3d 191, 204 (Colo. 2019).

  • Jury Instructions as whole accurately inform the jury of the controlling law. People v. Lucas, 232 P.3d 155, 162 (Colo. App. 2009).

  • Validity of a Miranda waiver. People v. Martin, 222 P.3d 331 (Colo. 2010).

  • Batson challenges, combination of de novo and clear error. Valdez v. People, 966 P.2d 587, 591 (Colo.1998), People v. Beauvais, 393 P.3d 509 (Colo. 2017).

  • Voluntariness of a statement. People v. Liggett, 2014 CO 72, 334 P.3d 231 (Colo. 2014).

  • Opportunity for defendant to speak at sentencing hearing. People v. Smalley, 369 P.3d 737 (Colo. App. 2015).

 

·       Question of Fact – Reviewed for Clear Error

o   In plain language, when the record does not support the finding of fact. Looking at the entire record, is the Court’s factual conclusion supported by the evidence.  People v. Humphrey, 132 P.3d 352, 362 (Colo.2006).

o   High level of deference given to a lower court, often more difficult to overcome than abuse of discretion. Appellate courts are not fact-finding courts, they rely on the trial court record as is. This complete deference to the record is why trial attorneys need to make a record about what they observe in court that is not captured by the transcript (e.g. the juror rolled their eyes, was crying, their voice broke, etc.)

o   Examples of application:

  • Whether a breach of a plea agreement has occurred. People v. McCormick, 859 P.2d 846 (Colo.1993).

  • Batson challenges, combination of de novo and clear error. Valdez v. People, 966 P.2d 587, 591 (Colo.1998), People v. Beauvais, 393 P.3d 509 (Colo. 2017).

 

·       Matters of Discretion- Reviewed for Abuse of Discretion

o   “An abuse of discretion results when a trial court’s ruling is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law.” People v. Casias, 312 P.3d 208 (Colo. App. 2012).

o   Highest level of deference given to a lower court.

o   Examples of application:

  • Trial court’s decision to admit testimony. People v. Payne, 461 P.3d 630 (Colo. App. 2019).

  • The granting or denial of a continuance. People v. Brown, 2014 CO 25, 322 P.3d 214 (Colo. 2014).

  • Trial court’s sentencing decision. People v. Fuller, 791 P.2d 702 (Colo.1990).

  • Limitations on counsel’s voir dire questions to potential jurors. People v. Collins, 730 P.2d 293 (Colo.1986).

  • Discovery sanctions. People v. Lee, 18 P.3d 192 (Colo.2001).

  • Decision to grant severance. Peltz v. People, 728 P.2d 1271 (Colo.1986).

  • Change of venue. People v. Simmons, 183 Colo. 253, 516 P.2d 117 (1973).

  • Denial of request to compel election. People v. Hanson, 928 P.2d 776 (Colo.App.1996).

Have questions about appellate issues? Reach out 2nd-Chair’s Senior Appellate Counsel, Britta Kruse, for appellate answers.

NOTE: This is an elementary 101-blog post written by a trial attorney for trial attorneys. Appellate attorneys may frame issues differently in order to leverage a better standard of review on appeal regardless of how the examples above are listed.

ADDITIONAL NOTE: Even if the appellate court find the trial court committed an error under the standard of review, that does not mean the ruling will be versed. Stay tuned for a 101 blog post on the standard of reversal.

Kelly Meilstrup