1976, December, Pg. 1808. Report of the CBA Evidence Code Review Committee.

• Author: by Francis W. Jamison

5 Colo.Law. 1808

Colorado Lawyer

1976.

1976, December, Pg. 1808.

Report of the CBA Evidence Code Review Committee

1808Vol. 5, No. 9, Pg. 1808Report of the CBA Evidence Code Review Committeeby Francis W. JamisonFrancis W. Jamison is chairman of the Special Colorado Bar Association Evidence Code Review Committee.1809The Evidence Code Review Committee was established in the fall of 1970 as a special Colorado Bar Committee. Its charge was to review the rules of Evidence in Colorado with a view to possible establishment of a set of rules or a Code of Evidence for the state. At that time, a great amount of interest was being generated in the field because of the work being done on the proposed Federal Rules.

The work of the Committee was established and has been carried on for the last five years in cooperation with the University of Denver College of Law. During the first three years the Committee studied basic research papers prepared by students and committee members and attempted to get a feel for the actual Evidence Rules in use in the state of Colorado. Then, as now, Colorado's evidence law was based on common law rules as modified by court decisions and statutes of Colorado and the United States. Any attempt to keep this law current was determined to be an insurmountable task. Because of the tremendous amount of work already accomplished on the Federal Rules of Evidence and their apparent imminent passage, it was early decided by the Committee that Colorado should adopt rules of Evidence based upon the form and style of the Federal Rules. Because the present law in Colorado concerning evidence is a combination of procedural rules and substantive law as enacted by statute, the Committee has attempted to retain this feature in its proposed rules. This is to say the Colorado statutory enactments have been retained totally in the Colorado proposed Rules. Only in the procedural and common law aspects of the rules are any proposed modifications made. Further, the Committee has taken the position that well-established evidentiary law which has stood the test of time should not be swept aside merely for the sake of change, uniformity, and codification.

The proposed set of rules that has been presented to the Colorado Bar Association Board of Governors for resolution represents a sincere attempt to organize, simplify and unify the law of evidence in the State of Colorado with a minimum amount of substantive change. It should be emphasized again that no statute of the state has been proposed to be modified.

The rest of this report is an attempt to summarize the more important changes that the Committee recommends between1810 existing Colorado law, the present Federal Code, and the Proposed Colorado Rules.

RECOMMENDED CHANGES

Article I. (General Provisions):The Proposed Rules are essentially the same as Article I in the Federal Code. It is the belief of the Committee that this article is substantially the same as present Colorado law.

Article II. (Judicial Notice):

This article also is believed by the Committee to be an accurate representation of present Colorado Law and is essentially the same as the Federal Code. Article III (Presumptions in Civil Actions and Proceedings): The Committee Rule represents a proposed modification in Colorado Law. The Committee proposes that essentially the Federal Code be adopted. It is recognized by the Committee that at the present time there are two distinct lines of authority in Colorado concerning presumptions in civil actions. One line of authority follows the "shifting burden of proof" theory. The other line of authority follows the "shifting burden of going forward" theory. The Committee has opted to follow the latter theory of a "shifting burden of going forward" for the sake of clarity and uniformity. The Committee comment in the proposed Rule concerning Article III is as follows:

This rule is essentially identical to the Federal Rule, thus achieving a desirable degree of uniformity and simplicity. It should be noted that this rule reaches a middle ground between the original Supreme Court's Rule of a "burden of disproof," and the "bursting bubble" theory of presumption. See 9 Wigmore, Evidence,§ 2491, 3rd. ed. 1940; May Stores Shopping Centers, Inc., v. Shoemaker, 151 Colo. 100 (1962) (presumption that the tax assessment value of land is correct); Moore v. Skiles, 130 Colo. 191, (1954) (presumption of joint control when joint owners of an automobile are riding in the car at the time of the accident) for a modified version of the "bubble" theory. The Federal Rule recognizes the difference between "evidence" as such, and a presumption, which is a means of dealing with an accumulation of evidence. Thus, the rule gives all of the proper traditional benefits of a presumption, but places no new burdens upon the opposing party. See House Report, p. 7; Senate Report, p. 9; Joint Explanatory Statement of the Committee of Conference; also 1 Jones, Evidence§ 3.6 (6th. ed.); McCormick, Evidence,§ 354 (2nd. ed. 1972). Contra, see Weiss v. Axler, 137 Colo. 544; Colorado Civil Jury Instructions § 3.5 Presumption Shifting Burden of Proof---Defined, Notes on Use, Sources and Authority, § 3.5A Presumption Shifting only Burden of Going Forward with Evidence---Defined.

Article IV. (Relevancy and its Limits):The Committee believes that the Federal Code and the present Colorado Law are essentially the same and proposes to adopt the Federal Code concerning Relevancy. It should be noted that in some instances the proposed rule is more specific than present case law in the state of Colorado.

Article V. (Privileges):The proposed Rule is a complete departure from the Federal Code and establishes no common law rules of privilege. Under the proposed Colorado rule, all of the statutory enactments in this State would be recognized. The Committee is1811 of the opinion that Colorado has a rather fully developed scheme of statutory enactments presently in existence and does not recommend any change. This in keeping with the overall theory that these rules should not be in conflict with the statutes of the State of Colorado.

Article VI. (Witnesses):Essentially, this is a proposal to adopt the Federal Code. In general it should be stated that this rule, except for its being more specific than the present Colorado law, is considered to be the same as present Colorado law, with one major change. The change is that the rule abandons the traditional position against impeaching one's own witness. An additional sentence has been added in the Colorado version of the rule to assist in resolving a conflict now existing between Rule 43b of the Colorado Rules of Civil Procedure and Colorado revised Statues 13-90-116. The additional sentence makes clear the position of the Committee that leading questions may always be used for the purpose of attacking the credibility of a witness.

It should be noted here that under Rule 609 your Committee proposes that the Colorado statute now in effect concerning impeachment by evidence of conviction of a crime be adopted as part of the Colorado Rules. Further, though, the Committee has made the following comment: "The above stated rule has been drafted in conformity with 13-90-101, C.R.S. 1973, relating to impeachment evidence of a witness who has been convicted of a felony. This rule is specifically not recommended by the committee, and the committee takes the position that every effort should be made to approach the state legislature to repeal the statute. ..."

Article VII. (Opinions and Expert Testimony):This is the one area in the proposed rules that the Committee believes a very substantial deviation from the present Colorado law is justified. For many years Colorado has had an extremely conservative and "out of date" rule concerning opinions and expert testimony. Because this is such a radical change from present Colorado law, the entire article compared to the Federal Rule is presented here:

Rule 701. Opinion Testimony by Lay Witnesses---Colorado Rule: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

Rule 701. Federal Rule Identical.

Rule 702. Testimony by Experts---Colorado Rule: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 702. Federal Rule Identical.

Rule 703. Bases of Opinion Testimony by Experts-Colorado Rule: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived or made known to him (a) at the hearing, provided the facts or data are not materially in conflict or do not constitute the opinions or inferences of others, or (b) before the hearing. If of a type reasonably and generally relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

1812Rule 703. Bases of Opinion Testimony by Experts---Federal Rule: The facts or data in the particular case upon which an expert bases an opinion or inference may be those...