Chapter 12 - § 13.1 THE HEARSAY RULE

• Jurisdiction: Colorado

§ 13.1 THE HEARSAY RULE

author's note. This chapter is organized according to hearsay concepts rather than the precise order in which the hearsay rules are enumerated. This method, it is hoped, will help find the appropriate authority in the rush of trial. For example, within § 13.2 (Definitions), I begin with the definition of hearsay, since that is usually the first point of reference when a hearsay objection is made. Each concept cites the corresponding rule and provides synopses of instructive cases. Where there is no substantive difference between the Colorado rule and its federal counterpart and only stylistic differences in wording, the counterparts are merged without quotes, followed by the applicable state and federal citations (see, e.g., § 13.3.4).

Practice Pointer
Methodology
Hearsay analysis in a civil case, especially for the proponent of the evidence, presents multiple issues in seriatim: (1) is it truly "hearsay" (Rule 801); (2) if so, is it admissible under any exceptions allowed under Rule 803 or 804; and (3) if not admissible under Rule 803 or 804, is it admissible under some other rule or statute, or under Rule 807, the residual hearsay exception? These threshold issues are merely the beginning of a thorough analysis. When studying and applying the reported cases, bear in mind that opinions issued in criminal cases are complicated by Sixth Amendment concerns. See Crawford v. Washington, 541 U.S. 36 (2004).

Practice Pointer
Strategy
Expect the battle over hearsay evidence to be won or lost in the trial court and prepare accordingly. The appellate court must be deferential to the trial court's evidentiary rulings. In addition, an error in admitting or excluding hearsay will not necessarily result in reversal of the judgment.

Practice Pointer
Hearsay in Motions for Summary Judgment
Summary judgment standards may allow the consideration of hearsay evidence in Colorado state courts if it has "the indicia of reliability." See Rademacher v. Greschler, No. 18CA0114, 2018 Colo. App. LEXIS 1909 (Colo. App. Dec. 27, 2018) (letter supported by affidavit properly considered on motion for summary judgment). Cf. Thomas v. IBM, 48 F.3d 478, 485 (10th Cir. 1995) (hearsay testimony inadmissible at trial could not be included in an affidavit to defeat summary judgment).

Colorado

➢ "Hearsay is not admissible except as provided by [the Colorado Rules of Evidence] or by the civil and criminal procedural rules applicable to the courts of Colorado or by

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