Chapter 1 - § 1.4 • DOCUMENTARY EVIDENCE — SPECIFIC FOUNDATIONAL REQUIREMENTS

• Jurisdiction: Colorado

§ 1.4 • DOCUMENTARY EVIDENCE — SPECIFIC FOUNDATIONAL REQUIREMENTS

Documents are the most common type of exhibit. Some of the statutes and common law rules that govern the admissibility of certain common types of documents are discussed in this section.

§ 1.4.1—Authentication and Best Evidence

Traditionally, when a party sought to prove the contents of a writing, rather than just the existence of the writing itself, the best evidence rule required that the party bring forth the original of the document, or make a sufficient showing as to why the original was not being produced. In exercising its discretion under CRE 1002, a trial court will consider the complexity of the writing, the danger of mistransmission of its contents, the difficulty of producing the original, and whether a bona fide dispute exists as to its contents. People v. Wortham, 690 P.2d 876, 878 (Colo. App. 1984); see also Airborne, Inc. v. Denver Air Center, Inc., 832 P.2d 1086 (Colo. App. 1992). (Summary evidence admissible under CRE 1006 is not objectionable on the ground that it violates the best evidence rule. If proper foundation has been established, questions concerning the authenticity of the evidence or the credibility of the testimony go to the weight of the evidence, not its admissibility); People v. Robinson, 908 P.2d 1152 (Colo. App. 1995), aff'd on other grounds, 927 P.2d 381 (Colo. 1996) (where original videotape was admitted, the videotape constituted best evidence and it was not plain error to allow further testimony regarding the contents of the videotape); Berenson v. USA Hockey, Inc., 338 P.3d 379 (Colo. App. 2013) (for an online registration process that requires a registrant to enter into an exculpatory agreement, this rule does not require production of a copy of the electronically executed agreement to the exclusion of all other proof of agreement to its terms to prove the registrant executed the agreement).

Thus, for example, if the original is in the possession of the party opponent, and if you provide notice of your intent to use a copy of the document at trial, your opponent cannot seek to exclude evidence of the contents of the document on the basis of the best evidence rule if the opponent fails to produce the original at trial. Fasso v. Straten, 640 P.2d 272, 275 (Colo. App. 1982) (because defendants were in possession of the copies for more than eight months prior to trial and knew at that time that the originals were in the hands of third parties, it was proper for the court to admit the duplicates in lieu of the originals pursuant to CRE 1003(2)).

The best evidence rule should be viewed as limiting the admission of copies rather than requiring the admission of an original and it is inapplicable where the recorded events themselves, rather than the contents of a document recording them are at issue. People v. Saiz, 32 P.3d 441 (Colo. 2001).

The best evidence rule is most applicable when a party seeks to prove the contents of a writing through testimony, rather than through the use of a copy or duplicate. In state court, unless there is a genuine dispute as to the authenticity of a copy of a document, most parties stipulate to the use of a copy of that document by their opponents. In addition, a number of statutory provisions make copies of certain documents, including the following, admissible at trial notwithstanding the best evidence rule:

• Printed statute books of the United States and of the several states and territories, printed under the authority of such states and territories, published by authority of such courts, may be read as evidence in all courts of Colorado of such acts and decisions, C.R.S. § 13-25-101;

• United States census bureau mortality table as published by the United States census bureau, when necessary to establish the expectancy of continued life of any person from any period of such person's life, whether he or she is living at the time or not, C.R.S. § 13-25-102;

• The official certificate of any register or receiver of any land office of the United States to any fact or matter in his or her office shall be received and held competent to prove the fact as certified, C.R.S. § 13-25-105;

• Copies of all papers, books, or proceedings or parts thereof pertaining to transactions in the corporate capacity of any town or city incorporated under any general or special law of Colorado, certified to be true copies by the clerk or keeper of the record, C.R.S. § 13-25-107;

• Certified copies of real estate assessments, C.R.S. § 13-25-107;

• Certificate of publisher along with a printed copy of the legal notice or publication as required by law or order of the court, C.R.S. § 13-25-114;

• Copies certified as correct by the state engineer or his or her deputy of all water officials' records, streamflow tables, rating curves, automatic water register sheets, and special reports of the state engineer and his or her deputies, hydrographers, and employees, and of the division engineers, or canal headgate keepers, reservoir outlet keepers, gauge readers, and other systematically compiled records or reports of diversions, storage, or discharge of waters or of the flows of streams on file in or constituting a part of the records and files of the state engineer, C.R.S. § 13-25-116;

• Certified copies of corporate resolutions and minutes, C.R.S. § 13-25-120;

• Duly certified copy of written finding of death by the Secretary of the Army, Navy, or other officer or employee of the United

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