Hearsay Evidence and the Residuum Rule in Colorado
| Publication year | 1988 |
| Pages | 651 |
1988, April, Pg. 651. Hearsay Evidence and the Residuum Rule in Colorado
For advocates who practice before Colorado Department of Revenue, Division of Motor Vehicle ("Department") license revocation hearings, September 14, 1987, must have seemed like the Day of Judgment. On that day, the Colorado Supreme Court issued forth not the Four Horsemen of the Apocalypse but five significant opinions.(fn1) These cases held inter alia that police reports, made by the investigating officers at the scene of alleged driving under the influence ("DUI") offenses, could be determined to be admissible hearsay and could comprise substantial evidence, thus meeting the Department's burden of proof to uphold license revocation.
These cases reversed the legal position of the Colorado Court of Appeals regarding revocation hearings, that hearsay alone could not support the "key element" of DUI.(fn2) However, perhaps more important to the members of the bar who practice before Colorado's administrative tribunals was the language in that day's most significant opinion, Colorado Department of Revenue v. Kirke,(fn3) that there will no longer be inflexible adherence to the "residuum rule" regarding hearsay evidence.
In general, hearsay is admissible at administrative proceedings, for these proceedings are not bound to follow the strict rules of evidence of the courtroom; however, when it is admitted, it is subject to being both probative and reliable.(fn4) Jurisdictions have varied as to whether hearsay alone may support an administrative decision. Some states follow what originally was the "New York rule," which requires that there be a residuum of nonhearsay evidence to corroborate the hearsay evidence and to support the administrative findings.(fn5) Colorado, prior to Kirke, appeared to be firmly within this "residuum rule" camp for all types of administrative hearings.(fn6) Other jurisdictions follow what originally could have been called the "Virginia rule," which allows a decision to be made purely on hearsay if the administrative tribunal, in its discretion, decides the evidence is sufficient.(fn7)
The Kirke decision, however, overruled a prior case, Sims v. Industrial Commission,(fn8) in which the Colorado Supreme Court had held that an administrative determination must be based on some nonhearsay evidence. In light of Sims and the other precedents, the Court of Appeals had read Sims to apply to any administrative proceeding. In Kirke, the Supreme Court held that, to the extent that Sims could be so interpreted, there would no longer be the requirement that some nonhearsay evidence, no matter how trustworthy the admitted hearsay, support the administrative determination.(fn9) According to the court, the present reliability requirement of the hearsay evidence for admissibility, when combined with the present requirement that the determination also be supported by substantial evidence, provides a guarantee of procedural due process in license revocation hearings.
The opinion in Kirke made it clear that Colorado has abandoned the mandatory application of the residuum rule in administrative hearings in general, and in license revocation hearings in particular. Yet it provided minimal guidelines to distinguish between those hearings analogous to license revocation hearings and those in which administrative due process would still require the production of some nonhearsay evidence to support a determination. The court, citing Sims and other cases, implied that hearings such as those involving public employment termination and those dealing with workers' compensation awards would necessitate the continued application of the residuum rule to satisfy the substantial evidence requirements.(fn10)
Since Kirke dealt...
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