ARTICLE 90 WITNESSES
| Jurisdiction | Colorado |
Cross references: For assistance to witnesses to crimes, see article 4.2 of title 24; for guidelines for assuring the rights of witnesses to crimes, see part 3 of article 4.1 of title 24; for the "Colorado Victim and Witness Protection Act of 1984", see part 7 of article 8 of title 18.
Law reviews: For a discussion of a Tenth Circuit decision dealing with witnesses, see 66 Den. U.L. Rev. 815 (1989).
13-90-101. Who may testify - interest. All persons, without exception, other than those specified in sections 13-90-102 to 13-90-108 may be witnesses. Neither parties nor other persons who have an interest in the event of an action or proceeding shall be excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief. In every case the credibility of the witness may be drawn in question, as now provided by law, but the conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness. The fact of such conviction may be proved like any other fact, not of record, either by the witness himself, who shall be compelled to testify thereto, or by any other person cognizant of such conviction as impeaching testimony or by any other competent testimony. Evidence of a previous conviction of a felony where the witness testifying was convicted five years prior to the time when the witness testifies shall not be admissible in evidence in any civil action.
Source: L. 1883: p. 289, § 1. G.S. § 3647. R.S. 08: § 7266. C.L. § 6555. CSA: C. 177, § 1. L. 41: p. 924, § 1. CRS 53: § 153-1-1. C.R.S. 1963: § 154-1-1.
I. General Consideration.
II. Prior Felony Conviction.
Law reviews. For article, "Fearing Hell as Essential to Validity of Affidavit", see 18 Dicta 144 (1941). For note, "Impeachment of Nonreligious Witnesses", see 13 Rocky Mt. L. Rev. 336 (1941). For article, "The Right to Practice Law as Dependent on Fear of Hell", see 19 Dicta 206 (1942). For article, "Bishop Rice's Last Battle for Civil Rights", see 22 Dicta 139 (1945). For note, "Some Problems Relating to Testamentary Witnesses", see 23 Rocky Mt. L. Rev. 458 (1951). For article, "Evidence in Estate Proceedings", see 24 Rocky Mt. L. Rev. 437 (1952). For article, "One Year Review of Wills, Estates, and Trusts", see 38 Dicta 115 (1960). For comment, "Reporter's Privilege: Pankratz v. District Court", see 58 Den. L.J. 681 (1981). For article, "Termination of a Personal Representative", see 19 Colo. Law. 213 (1990). For article, "The Defendant's Decision Not to Testify", see 19 Colo. Law. 1589 (1990). For article, "Admissibility of Prior Felony Convictions for Impeachment Purposes", see 32 Colo. Law. 79 (Nov. 2003). For article, "Age Requirements in Colorado: A Guide for Estate Planners", see 34 Colo. Law. 87 (Aug. 2005).
Annotator's note. Cases material to § 13-90-101 decided prior to its earliest source, L. 1883, p. 289, § 1, have also been included in the annotations to this section.
This section is constitutional. People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979).
Section does not violate § 21 of art. VI, Colo. Const., as an intrusion into matters exclusively judicial. Legislative policymaking and judicial rulemaking powers may overlap to some extent as long as there is no substantial conflict between statute and rule. People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978); People v. Diaz, 985 P.2d 83 (Colo. App. 1999).
For constitutionality of this section, see Trackman v. People, 22 Colo. 83, 43 P. 662 (1896).
The right to testify in the courts of the state is not a privilege or immunity protected by the fourteenth amendment, and the state general assembly has the power to declare who shall be competent to testify, and to regulate the production of evidence in the state courts. Estate of Freeman v. Young, 172 Colo. 322, 473 P.2d 704 (1970).
This section does not endow party witnesses in a civil action with a fundamental right to testify. Rather, it simply renders a party competent to testify and the testimony of all witnesses remains subject to the applicable rules of evidence. Williams v. Chrysler Ins. Co., 928 P.2d 1375 (Colo. App. 1996).
The general assembly has the right to control the general competency of witnesses and the subjects of their testimony; but a court cannot be empowered to make a party a competent witness contrary to the general law. Estate of Freeman v. Young, 172 Colo. 322, 473 P.2d 704 (1970).
Language of this section is mandatory and not discretionary. Havens v. Hardesty, 43 Colo. App. 162, 600 P.2d 116 (1979).
It removes the disqualification of witnesses on the ground of interest, or the conviction of crime, except as set forth in the following sections. Palmer v. Hanna, 6 Colo. 55 (1881); Estate of Freeman v. Young, 172 Colo. 322, 473 P.2d 704 (1970).
There is a presumption that a witness is competent to testify. People v. Piro, 671 P.2d 1341 (Colo. App. 1983).
Rule excluding parties interested in outcome of suit abolished. General common-law rule, that the testimony of all parties to a lawsuit and of all persons who stood to gain or lose by the outcome of the case was excluded as incompetent has been abolished in Colorado. Wise v. Hillman, 625 P.2d 364 (Colo. 1981).
The parties to an action are competent witnesses in their own behalf, and they are thus placed on an equality. Whitsett v. Kershow, 4 Colo. 419 (1878); Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).
Defendant testifying on own behalf is witness. When a defendant takes the stand in his own defense, he becomes a witness within the meaning of this section. People v. Evans, 630 P.2d 94 (Colo. App. 1981).
It was the intention of the general assembly, by this section, to entirely remove the disqualification theretofore resting upon husband and wife on account of the marriage relation, or, as stated by Chancellor Kent, on account of public policy. Butler v. Phillips, 38 Colo. 378, 88 P. 480 (1906).
Husband may testify in suit involving wife's property. Under this and the following section the husband may be permitted to testify in a cause wherein the separate property of the wife is concerned. Hanna v. Barker, 6 Colo. 303 (1882).
There still are certain exceptions. At common law, a party to a suit could not testify at all in his own behalf, and while this statute has changed this rule of the common law, certain exceptions are still provided for. Cliff v. Cliff, 23 Colo. App. 183, 128 P. 860 (1912).
Objection to competency of witnesses must be made in trial court. An objection to the admission or exclusion of evidence on the ground of the competency of a witness must be made in the trial court. Otherwise, it will not be considered on review. Holm v. People, 72 Colo. 257, 210 P. 698 (1922).
This section has no application to proceeding inquiring into a party's mental health. In the special statutory proceeding to inquire into the mental health of a party, the provisions of this section have no application to such proceedings being neither civil nor criminal, and in no sense adversary, a wife may testify as to the mental condition of her husband as illustrated by his acts. Sabon v. People, 142 Colo. 323, 350 P.2d 576 (1960).
Prosecuting attorney as witness. In Colorado, a prosecuting attorney is competent to be a witness for the state, but ordinarily he should withdraw from active participation in a case when he learns he will be a witness. People v. Hauschel, 37 Colo. App. 114, 550 P.2d 876 (1976).
Where the district attorney's participation in the trial was limited, and pursuant to court order, after he testified he took no further part in the trial, nor was the nature of the district attorney's testimony here as significant or damning as that in People v. Spencer (182 Colo. 189, 512 P.2d 260 (1973)), the district attorney's indiscretion did not rise to the seriousness of constituting a denial of a fair trial, and thus the refusal to grant a mistrial after his testimony was not reversible error. People v. Hauschel, 37 Colo. App. 114, 550 P.2d 876 (1976).
Testimony properly allowed despite witness's hearing deficiency. Although defendant's mother was incapacitated by reason of a hearing loss, her testimony was properly allowed where the record reveals that although the witness had a hearing deficiency and several questions had to be repeated her answers were responsive to the questions asked, which clearly indicates that she perceived the meaning of the questions. People v. Forbes, 185 Colo. 410, 524 P.2d 1377 (1974).
Impeachment of defendant may not be accomplished by attacking witness's general character. While evidence of prior misconduct, including misdemeanor convictions, may be admitted to attack the veracity of specific testimony by a defendant, impeachment of a defendant may not be accomplished by attacking the general character of the witness. People v. Sasson, 628 P.2d 120 (Colo. App. 1980).
Witness is presumed to be competent, and whether or not a witness is competent is within the sound discretion of the trial court, and its ruling may be disturbed only upon a finding of clear abuse of discretion. People v. Woertman, 786 P.2d 443 (Colo. App. 1989).
Cross-examination regarding prior misdemeanor conviction was proper in trial for violation of custody where prior conviction was for violation of custody and was directly relevant to defendant's state of mind and tended to refute defendant's own testimony that he had no prior arrest record. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).
Grand jury proceedings constitute judicial proceedings which entitle witnesses to absolute immunity from subsequent civil liability for his or her testimony. Wagner v. Bd. of County Comm'rs, 933 P.2d 1311 (Colo. 1997).
For history of section, see People v. Yeager, 182 Colo. 397, 513 P.2d 1057 (1973).
Applied in Williams v. People, 157 Colo. 443, 403 P.2d 436 (1965); People v. Lambert, 194 Colo. App. 421, 572...
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