Chapter 6 - § 6.9 AVAILABILITY OF WITNESSES

• Jurisdiction: Colorado

§ 6.9 AVAILABILITY OF WITNESSES

Colorado

➢ General. A witness is considered unavailable when the witness (1) is excused by the court from testifying on the ground of privilege, (2) refuses to testify despite an order of the court to testify, (3) testifies to a lack of memory of the subject matter, (4) is unable to testify because of death or an existing physical or mental illness or infirmity, or (5) is absent from the hearing in which the witness was supposed to testify and the proponent has been unable to procure the witness's attendance by process or other reasonable means. CRE 804(a).

➢ Establishing Unavailability. The burden of establishing unavailability is on the proponent of the statement, which is a condition precedent to admitting evidence under the hearsay exceptions in CRE 804(b). People v. Franklin, 782 P.2d 1202, 1206 (Colo. App. 1989).

➢ Unavailability; Privilege. The declarant must actually invoke the privilege before the trial court, and the trial court must rule that the privilege is available in order for the declarant to be found "unavailable" under CRE 804(a)(1). People v. Rosenthal, 670 P.2d 1254, 1256 (Colo. App. 1983). Although the preferred method of determining unavailability is for the declarant to come before the court and assert the privilege personally, the physical production of the declarant is not required in every case for a determination of unavailability to be made. People v. Barnum, 23 P.3d 1237 (Colo. App. 2001).

➢ Unavailable Witness; Use of Prior Testimony. When a witness is found to be "unavailable" under CRE 804(a), under certain circumstances, prior testimony of that witness may be offered as evidence, over a hearsay objection. Former testimony of the witness, given at a trial or deposition, may be offered if the party against whom it is offered or its predecessor in interest had an opportunity and similar motive to develop the testimony through direct, cross-, or redirect examination. CRE 804(b)(1); Margenau v. Bowlin, 12 P.3d 1214, 1217 (Colo. App. 2000); C.R.C.P. 32(a)(3).
➢ Former Testimony. Where the witness is deceased, fairness requires a foundational showing of both prior opportunity by the party against whom prior testimony is offered to develop the offered testimony, as well as a similar motive to do so. Berger v. Coon, 606 P.2d 68, 70 (Colo. 1980).

➢ Unavailable Witness; Use of Statement. A prior statement against the declarant's pecuniary or proprietary interest, or one which would subject the declarant to civil or criminal liability may be offered, CRE 804(b)(3)(A), as may a statement regarding the declarant's personal or family history. CRE 804(b)(4).

➢ Statements Must Be Against Declarant's Interest. Under CRE 804(b)(3), exposure to criminal liability satisfies the "against interest" requirement, but statements made by the declarant against her spouse's interests were not admissible under the rule. People v. Raffaelli, 701 P.2d 881, 884 (Colo. App. 1985). A statement made by the declarant against his own penal interests that was also against the interests of his spouse were properly admitted in the spouse's criminal trial. Nicholls v. People, 2017 CO 71, ¶¶ 46-47.

➢ Statement Against Penal Interest; Admissibility. If the trial court determined that the statement sought to be introduced contains facts against the "defendant's penal interests," it should admit all statements related to the precise statement against penal interest, subject to two limitations: (1) statements that are so self-serving as to be unreliable should be excluded, and (2) "if the trial court determines that the declarant had a significant motivation to curry favorable treatment, then the entire narrative is inadmissible." People v. Newton, 966 P.2d 563, 572 (Colo. 1998), abrogated in part on other grounds by Nicholls v. People, 2017 CO 71.

➢ Statement Against Penal Interest; Trial Court Discretion. Trial courts have wide discretion in determining the admissibility of statements against penal interest. People v. Stephenson, 56 P.3d 1112, 1116 (Colo. App. 2001).

➢ Unavailable Witness; Use of Other Statements. Other statements, not covered by Rule 804, may also be offered, providing they have equal circumstantial guarantees of trustworthiness and otherwise satisfy the requirements of CRE 807.
➢ Statements of Personal or Family History. Statements about a person's age are properly admitted under CRE 804(b)(4). People v. Buhrle, 744 P.2d 747

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