Chapter 12 - § 12.2 IMPEACHMENT

• Jurisdiction: Colorado

§ 12.2 IMPEACHMENT

Colorado

➢ General. The credibility of a witness may be attacked by any party, including the party calling the witness. CRE 607.

➢ Use of Depositions to Impeach. See Chapter 15, "Use of Pleadings and Discovery" and Chapter 14, "Use of Depositions."

➢ Character Trait of Untruthfulness. The credibility of a witness may be attacked or supported by evidence of opinion or reputation of truthfulness or untruthfulness if the character of the witness for truthfulness has been attacked. CRE 608(a).

➢ Dead Man's Statute. See § 8.3.

➢ Immoral Conduct or Bad Acts. In general, prior conduct of a witness may not be proved by extrinsic evidence for the purpose of attacking the witness's credibility. CRE 608(b). Extrinsic evidence of a conviction of a felony less than five years prior to the witness's testimony may be used to attack a witness's credibility. CRE 608(b) and C.R.S. § 13-90-101; see also the below subsection on Convictions. In the discretion of the court, acts probative to a witness's character for truthfulness or untruthfulness may be inquired into on cross-examination of the same witness. If a witness testifies to the character of another witness, the court in its discretion may allow the witness to be cross-examined on acts probative to the truthfulness or untruthfulness of the other witness. CRE 608(b).

➢ Prior Inconsistent Conduct. See the above subsection on Immoral Conduct or Bad Acts.
➢ Polygraph Examinations. Polygraph examination results are per se inadmissible. Valley Nat'l Bank of Cortez v. Chaffin, 718 P.2d 259, 262 (Colo. App. 1986).

➢ Contradiction. If a witness testifies to a material fact, another witness may be called to contradict that fact. See People v. Valdez, 874 P.2d 415, 419 (Colo. App. 1993).

➢ Collateral Issues. In general, a party may not introduce extrinsic evidence that is not material to the case for the purpose of impeaching a witness. Banek v. Thomas, 733 P.2d 1171, 1178 n. 7 (Colo. 1986). Extrinsic evidence relating to a prior conviction may be introduced. See the above subsection on Immoral Conduct or Bad Acts. Extrinsic evidence of a prior inconsistent statement may also be introduced. See the following subsection on Prior Inconsistent Statements.

➢ Prior Inconsistent Statements. A witness may be impeached through evidence of a statement made by the witness prior to trial that is inconsistent with the witness's trial testimony. Before a witness may be examined for impeachment by a prior inconsistent statement, the examiner must call the witness's attention to the particular time, place, and person to whom the witness made the statement. As a part of the foundation, the examiner may refer to the specific witness's statement and may give the exact language of the prior statement. If the witness denies or does not remember making the prior statement, extrinsic evidence, such as a deposition, proving the prior statement is admissible. CRE 613. A prior inconsistent statement made by a witness is not hearsay. CRE 801(d)(1); FRE 801(d)(1)(A).

➢ Convictions. Evidence that a witness has been convicted of a felony is admissible. For civil trials, the felony conviction must have occurred within five years of the time the witness testifies. C.R.S. § 13-90-101. Evidence of a prior conviction may also be admitted when a statement by a witness would mislead the trier of fact if uncontradicted by evidence of the conviction. Baneck v. Thomas, 733 P.2d

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