Proposed Colorado Rules of Evidence
| Publication year | 1979 |
| Pages | 356 |
1979, March, Pg. 356. Proposed Colorado Rules of Evidence
The Proposed Rules of Evidence are the product of six years of work by a select committee of the Colorado Bar Association, chaired by Professor Francis W. Jamison. The Rules parallel the Federal Rules of Evidence and the Uniform Rules of Evidence promulgated by the National Conference of Commissioners on Uniform State Laws. The drafting committee submitted the Proposed Rules to the Colorado Supreme Court and assisted in the presentation and complete review of the Rules at two public hearings and a subsequent meeting with interested members of the General Assembly.
The Supreme Court is considering various suggestions to enable the General Assembly to review the Proposed Rules before their adoption by the Supreme Court. Further changes are not contemplated, but the Supreme Court encourages comment, suggestions, and possible additions which might improve the Proposed Rules.
Statement of the Supreme Court of
Colorado-approved and submitted
on January 12, 1979. En Banc.
These rules govern proceedings in all courts in the State of Colorado, to the extent and with the exceptions stated in Rule 1101. These rules govern proceedings in the courts of the United States and before United States magistrates, to the extent and with the exceptions stated in Rule 1101.
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
(Federal Rule Identical.)
(a) Effect of erroneous ruling: Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection: In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof: In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(b) Record of offer and ruling: The court may add any other or further statement which shows the character of evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury: Injury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
(Federal Rule Identical.)
(a) Questions of admissibility generally: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivisions (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of jury: Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.
(d) Testimony by accused: The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
(e) Weight and credibility: This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
(Federal Rule Identical.)
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
(Federal Rule Identical.)
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
(Federal Rule Identical.)
(a) Scope of rule: This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts: A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary: A court may take judicial notice, whether requested or not.
(d) When mandatory: A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard: A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice: Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury: In a civil action or proceeding, the court shall instruct the jury
(Federal Rule Identical.)
This rule is identical to Rule 201 F.R.E. and generally codifies prior Colorado case law. See Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900) [courts take judicial notice of those matters which may be designated as "common knowledge"]; Finnerty v. Cook, 118 Colo. 310, 195 P.2d 973 (1948) [judicial notice of facts which are "universally known"]; Israel v. Wood, 93 Colo. 500, 27 P.2d 1024 (1933) [courts take judicial notice of matters of common knowledge in the community where they sit]; Bieser v. Stoddard, 73 Colo. 554, 216 P. 707 (1923) [well recognized natural and physical laws are judicially known and may not be put in issue by denial of their inevitable effect]; Winterberg v. Thomas, 126 Colo. 60, 246 P.2d 1058 (1952) [appellate courts will not hesitate to take judicial notice of the unquestioned laws of mathematics]. However, the mandatory nature of subsection (d) is a departure from existing practice.
In this rule judicial notice is limited to adjunctive facts which are those facts that can be readily determined by resort to accurate sources, such as a calendar date, Sierra Mining Company v. Lucero, 118 Colo. 180, 194 P.2d 302 (1948); term of public office, People, ex rel, Flanders v. Neary, 113 Colo. 12, 154 P.2d 48 (1944); or statistical charts, Good v. A. B. Chance Co., 565 P.2d 217 (Colo. App. 1977).
In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.
This rule is essentially identical to the Federal rule, thus achieving a desirable degree of uniformity and simplicity. 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, 328 P.2d 88 (1958); 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.
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
(No Colorado Rule.)
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