Res Gestae Evidence

• Publication year: 1995
• Pages: 1567
• Citation: Vol. 24 No. 7 Pg. 1567

24 Colo.Law. 1567 Colorado Lawyer 1995.

1995, July, Pg. 1567. Res Gestae Evidence

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1567

Vol. 24, No. 7, Pg. 1567

Res Gestae Evidence

by Lawrence M. Zavadil

Q: Did the admissibility of res gestae evidence survive the adoption of the Colorado Rules of Evidence?

A: Yes, but the hearsay exceptions in Rule 803 have displaced the "res gestae" terminology while permitting introduction of much of what used to be considered res gestae evidence. In criminal cases, Colorado still uses the res gestae principle to admit evidence of conduct or statements contemporaneous with the crime charged.

Discussion

Res gestae evidence is "matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without knowledge of which the main fact might not be properly understood."(fn1) Res gestae evidence "includes the circumstances, facts and declarations which arise from the main event and serve to illustrate its character."(fn2) It also includes "evidence that is closely related in both time and nature to the charged offense."(fn3)

Use of the phrase "res gestae" has come under sharp criticism from commentators as a vague and imprecise term no longer necessary, given the modern rules of evidence.(fn4) Indeed, some courts have opined that res gestae is no longer part of the law of evidence.(fn5) At least in criminal cases, however, the Colorado Court of Appeals has explicitly rejected this view,(fn6) and the Colorado Supreme Court continues to use res gestae as a principle that is viable apart from the Colorado Rules of Evidence.(fn7)

In civil cases, use of res gestae terminology has largely been replaced by the following hearsay exceptions contained in Rule 803: (1) spontaneous statements [Rule 803(1)];(fn8) (2) excited utterances [Rule 803(2)]; and (3) statements of then-existing mental, emotional or physical condition [Rule 803(3)].(fn9) Since the adoption of the Colorado Rules of Evidence in 1979 (effective January 1, 1980), no reported decision in a Colorado civil case has relied on res gestae terminology.

NOTES

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Footnotes

1. Woertman v. People, 804 P.2d 188, 190 n.3 (Colo. 1991) [quoting Martinez v. People, 55 Colo. 51, 53-54, 132 P. 64, 65 (1913)]; see also People v. Rollins, 24 Colo.Law.. 1216 (May 1995) (S.Ct. No. 93SC682, annc'd 3/20/95) (not yet released for...