Admissibility of Rebuttal Evidence - March 2006 - Evidence

• Publication year: 2006
• Pages: 81
• Citation: Vol. 35 No. 3 Pg. 81

35 Colo.Law. 81 Colorado Lawyer 2006.

2006, March, Pg. 81. Admissibility of Rebuttal Evidence - March 2006 - Evidence

The Colorado Lawyer
March 2006
Vol. 35, No. 3 [Page 81]

Departments and More
Evidence

Admissibility of Rebuttal Evidence
by Levi D. Williamson

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.

This month's article was written by Levi D Williamson, Denver, an associate with Holme Roberts &amp Owen LLP - (303) 866-0630, levi.williamson@hro.com. The author thanks Laurie J. Rust, a student at the University of Colorado School of Law and law clerk at Holme Roberts &amp Owen LLP, for her assistance.

Q: When should a trial court rule on the admissibility of rebuttal evidence?

A: A trial court should rule on the admissibility of rebuttal evidence after the adverse party has presented its evidence.

Assumed Facts

Reggie Tree was driving across a railroad crossing on his way home from playing in football game when a train owned by Behemoth Railroad Co. struck Tree's car, killing him. Tree's widow sued Behemoth for negligence. She claims that Behemoth negligently maintained the train's brakes, causing the accident. Behemoth claims that it was not negligent and that it regularly serviced its trains. Behemoth's reports indicate that Tree was seen drinking heavily after the football game, and before driving away from the stadium, but it has not yet put forth an alternate theory as to the cause of the accident.

At a pretrial hearing, Tree's widow requests that the court rule on the admissibility of rebuttal evidence showing that her husband never drank alcohol (a member of his team will testify to this fact). When should the trial court rule on the admissibility of the rebuttal evidence?

Discussion

Rebuttal evidence is evidence that tends to contradict the adverse party's case. It may be used to challenge the testimony of a specific witness or refute the adverse party's entire theory or claim.(fn1) Unlike impeachment evidence, which is more focused on the credibility of a witness, rebuttal evidence is essentially substantive in nature.(fn2) Rebuttal evidence "goes to the heart of the case, reflecting upon the truth of facts upon which the other side relies."(fn3)

Rebuttal evidence is admissible at the discretion of the trial court and may include "any competent...