In Wend v. People, the Colorado Supreme Court reversed a second-degree murder conviction because the prosecutor repeatedly used various forms of the word "lie" to describe some of the defendant's statements made during two taped interviews with the police. In its opinion, the court first held that in Colorado it is categorically improper for a prosecutor to use the word "lie." In doing so, it committed itself to a unique legal standard for one word that runs contrary to the traditional legal test used nationwide for all forms of prosecutorial misconduct. Then, the court reversed the conviction on plain error review-a standard that requires a contextual, "totality of the circumstances" analysis of the trial's fundamental fairness-but only after it completely avoided critical facts bearing on that inquiry. This Note demonstrates that Colorado's categorical rule against a prosecutor's use of the word "lie" is unnecessary and imprudent. It also shows that Wend's plain error review was incomplete because it failed to address the case's most critical facts bearing on whether the defendant was denied a fair trial.
Using Poor Form as a Proxy for Poor Substance: A Look at Wend v. People and Its Categorical Rule Prohibiting Prosecutors from Using the Word "Lie",
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol83/iss2/7