Defendant Does Not Invite Error if Caused by Actions of the Court

A defendant does not invite error if his counsel withdraws a hearsay argument due to actions of the trial court and then later fails to affirmatively object to the court’s actions.

State v. McNeil, 2016 UT 3, 365 P.3d 699.

   The Utah Supreme Court narrowed its definition of invited error to exclude instances when the court takes actions in which counsel fails to object. Generally, invited error occurs when counsel encourages the trial court to make an erroneous ruling. To do this, counsel would need to independently make an affirmative representation of an erroneous principle. This principle, however, is moot if the trial court is responsible for leading the trial to the error in the first place. The defendant’s counsel withdrew an objection to an error due to actions of the trial court, therefore, the failure to object “to a trial court’s actions in not invited error in this context.”

https://www.utcourts.gov/opinions/supopin/State%20v.%20McNeil20160106.pdf