C.r.e. 103(a) and Harmless Error

• Publication year: 2004
• Pages: 91

33 Colo.Law. 91 Colorado Lawyer 2004.

2004, November, Pg. 91. C.R.E. 103(a) and Harmless Error

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91

Vol. 33, No. 11, Pg. 91

The Colorado Lawyer
November 2004
Vol. 33, No. 11 [Page 91]

Specialty Law Columns
Evidence
C.R.E. 103(a) and Harmless Error
by Lawrence M. Zavadil

This month's article was written by Lawrence M. Zavadil Denver, a partner with Jacobs Chase Frick Kleinkopf &amp Kelley, LLC, (303) 389-4644 or lzavadil@jcfkk.com

Those interested in submitting an article for publication in the Evidence column should contact the editor, Lawrence M. Zavadil, at (303) 389-4644 or lzavadil@jcfkk.com.

Q: When is reversal required for an erroneous evidentiary ruling?

A: Different standards are used for reversal, depending on the nature of the evidentiary error.

Assumed Facts

Joe Slow tries to use a credit card to make a purchase. When the clerk asks for his identification, he attempts to flee but is apprehended by a store security guard, who calls the police. Joe tells the police officer that he found the credit card on the ground and intended to return it to its owner, but mistakenly pulled it out of his wallet when he stopped to make a purchase.

The officer asks Joe why he ran and he replied, "I could lose my job for committing a crime." The police officer then reads Joe his Miranda rights and again asks Joe why he ran. Joe responds, "I have been accused of this kind of thing before and I did not think anyone would believe me."

Joe is charged with unlawful use of a credit card. Although Joe does not testify, through the police officer, the prosecution is allowed to introduce both of the above pre-trial statements by Joe, over the objection of Joe's attorney. Joe is convicted and appeals on the ground that the court erroneously admitted Joe's custodial, pre-Miranda statement in violation of Joe's Fifth Amendment rights. Joe also argues that the court erroneously admitted, under C.R.E. 404(b), Joe's post-Miranda statement about prior accusations against him, because no other evidence showed that the prior uncharged conduct occurred or that Joe was involved. How should the appellate court rule?

Discussion

C.R.E. 103(a) provides that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected."1 This "harmless error" rule recognizes the fact that "[a] perfect trial is an impossibility and minor mistakes will inevitably occur."2...