Chapter 6 - § 6.17 REBUTTAL AND SUR-REBUTTAL

• Jurisdiction: Colorado

§ 6.17 REBUTTAL AND SUR-REBUTTAL

Colorado

➢ Rebuttal Evidence; Defined. Rebuttal evidence is that evidence that "tends to contradict the adverse party's case, whether it be challenging the testimony of a specific witness or refuting the adverse party's entire theory or claim." People v. Welsh, 80 P.3d 296, 304 (Colo. 2003). "'Rebuttal evidence goes to the heart of the case, reflecting upon the truth of facts upon which the other side relies,'" and therefore, it is essentially substantive in nature. Id. (citations omitted).

➢ Rebuttal Proper. A plaintiff need not anticipate the defendant's testimony or evidence and is entitled to "introduce any competent evidence to explain, refute, counteract or disprove the [defendant's] proof," even if such evidence goes to support the plaintiff's case in chief, as long as it is material and competent. Deeds v. People, 747 P.2d 1266, 1274 (Colo. 1987) (quotations and citations omitted); Moore v. People, 467 P.2d 50, 53 (Colo. 1970); Taylor v. Mazzola, 375 P.2d 96, 99 (Colo. 1962); Jones v. Feiger, Collison & Killmer, 903 P.2d 27, 30 (Colo. App. 1994), rev'd on other grounds, 926 P.2d 1244 (Colo. 1996).

➢ Rebuttal Discretionary. Whether to allow rebuttal testimony is in the sound discretion of the trial court. Welsh, 80 P.3d at 304.

➢ Rebuttal Should Not Circumvent C.R.C.P. 16. Evidence should not be rejected "merely because [it is] offered out of regular order, especially where . . . no unfair advantage is taken and the opponent is not prejudiced," Taylor, 375 P.2d at 99; however, where disallowance of testimony was not based merely on its presentation out of regular order but because the testimony was central to the case and because it was not a surprise to the plaintiff, such that rebuttal with an unendorsed witness was required, the trial court did not abuse discretion in refusing to allow the witness to testify, because otherwise it would circumvent dictates of Rule 16, and "[i]t is not unreasonable to require compliance with the rule when the need for the testimony could be reasonably anticipated." Jones, 903 P.2d at 31.

➢ Rebuttal Allowed. The testimony of three different men previously sexually assaulted by the defendant was admissible in prosecution of sex offenses for the limited purposes of rebutting the defense of the victim's recent fabrication of the incident, to show intent, and to demonstrate absence of mistake and accident. People v. Duncan, 33 P.3d 1180, 1183 (Colo. App. 2001).
➢ Limitations;

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