Chapter 42 - § 42.21 • 2002 REPEAL AND RE-ENACTMENT OF DEAD MAN'S STATUTE

• Jurisdiction: Colorado

§ 42.21 • 2002 REPEAL AND RE-ENACTMENT OF DEAD MAN'S STATUTE

Effective July 1, 2002, Colorado's historic dead man's statute,¹⁵⁴ including the list of exceptions to its operations, was repealed and re-enacted in a format that is much simpler to read and understand. In general, it appears:

1) That the Act will continue to apply in contested litigation as related both to decedent's estates and guardianship and protective proceedings;
2) The rebuttal exception is maintained;
3) Testimony of a party or interested person will now be allowed where a statement was made under oath at a time when (a) the person was competent to testify; (b) the statement is corroborated by material evidence of a independent and trustworthy nature; or (c) the opposing party introduces evidence of related communication;
4) The applicability of the Act, as a rule of evidence, will continue to be a matter of law for the court;
5) The definition of "person in interest" is broader than the old statutory bar of testimony of a person with a direct pecuniary interest in the action, but will allow testimony by those with interests that are derivative or incidental.

The 2002 statute is discussed in Herbert E. Tucker, Marc Darling, and James W. Hill, "The Colorado Dead Man's Statute."¹⁵⁵

In 2013, C.R.S. § 13-90-102 (the "dead man's statute") was significantly amended. The statute as amended now provides:

in any civil action or proceeding in which an oral statement of a person incapable of testifying is sought to be admitted into evidence, each party and person in interest with a party shall be allowed to testify regarding the oral statement if:
(a) The statement was made under oath at a time when such person was competent to testify;
(b) The testimony concerning the oral statement is corroborated by material evidence of a trustworthy nature;
(c) The opposing party introduces uncorroborated evidence of related communications through a party or person in interest with a party; or
(d) Such party or person testifies against his or her own interests.

The phrase "corroborated by material evidence" is defined to mean:

corroborated by evidence that supports one or more of the material allegations or issues that are raised by the pleadings and to which the witness whose evidence must be corroborated will testify. Such evidence may come from any other competent witness or other admissible source, including trustworthy documentary evidence, and such evidence need not be sufficient standing alone to

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