Chapter 12 - § 13.3 WHAT IS NOT HEARSAY

• Jurisdiction: Colorado

§ 13.3 WHAT IS NOT HEARSAY

Some statements are not excluded by the hearsay rule because they are not hearsay.

§ 13.3.1—Statements Offered Other Than for Their Truth or Falsity

Colorado

➢ Statement Offered for Purpose Other Than to Show the Truth of the Statement. A statement is not hearsay if it is offered to prove that it was made and not offered for its truth or falsity. Conrad v. City & County of Denver, 656 P.2d 662, 677 (Colo. 1982) (statement of religious faith, made at nativity scene, was not hearsay when offered to prove the claim that the scene was a place of worship).

➢ Statement that "[the defendant] and [co-conspirator] better get him something to drink or he's going to get out of there, come into the kitchen, get a knife and kill [them] both with the knife," was not hearsay but a "command" that provided circumstantial evidence that the declarant was extremely thirsty. People v. Phillips, 315 P.3d 136, 160 (Colo. App. 2012).

➢ A Police Officer's Testimony that a Telephone Caller Denied He Was the Defendant was not hearsay under CRE 801(c) and was therefore admissible. It was offered to prove the falsity, not the truth, of the declarant's statement. People v. Kendall, 174 P.3d 791 (Colo. App. 2007).

➢ Incident or Accident Reports, When Used for the Limited Purpose of Proving Notice of product defects to the manufacturer of the product, are not hearsay. They are not being admitted to establish the truth of the statements in the reports. Schmutz v. Bolles, 800 P.2d 1307, 1311 (Colo. 1990); Armentrout v. FMC Corp., 819 P.2d 522, 524 (Colo. App. 1991), aff'd in part, rev'd in part, 842 P.2d 175 (Colo. 1992).

Federal

➢ Crash Test Videotape and Test Report, Offered to Prove Notice to Manufacturer, were not hearsay. Misener v. General Motors, 165 F.R.D. 105, 106 (D. Utah 1996).

➢ "Verbal Acts," statements offered to show a defendant's participation in a crime rather than the truth of their assertions, are not hearsay. The declarant's statement, in the defendant's presence, that a courier "brought the stuff in from Columbia," was not hearsay. United States v. Alvarez-Porras, 643 F.2d 54, 58 (2d Cir. 1981).
➢ Expert Witness's Solicitation of Bribe admissible as "verbal act" and was not hearsay. Transportes Aereos Pegaso, S.A. v. Bell Helicopter Textron, Inc., 623 F. Supp. 2d 518, 529-30 (D. Del. 2009).

➢ Statement Offered to Show its Effect on the Listener is not hearsay. United States v. Lambinus, 747 F.2d 592 (10th Cir. 1984) (declarant's offer to the defendant to engage in criminal conduct).

➢ A City Clerk's Statement Concerning the City's Electrical Code was not hearsay and was not offered for its truth, but as evidence of information that the defendant relied upon. Selrahc v. Burruss, 233 F. App'x 819, 825 (10th Cir. 2007) (not selected for official publication).

➢ Papers Found in Defendant's Motel Room, Reciting Formula for Making Controlled Dangerous Substance, were admissible to show the defendant's participation in the offense. United States v. Wicks, 995 F.2d 964, 974 (10th Cir. 1983).

§ 13.3.2—Prior Statement of a Witness

Prior Statements of the Witness Are Not Hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of the following:

Colorado

➢ Prior Inconsistent Statement (Colorado). Inconsistent with the declarant's testimony. CRE 801(d)(1)(A).

➢ Prior Consistent Statement. "[C]onsistent with [the declarant's] testimony and is offered to rebut an express or implied charge against him [or her] of recent fabrication or improper influence or motive." CRE 801(d)(1)(B).

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