Chapter 6 - § 6.10 • PRIOR STATEMENTS BY A WITNESS

• Jurisdiction: Colorado

§ 6.10 • PRIOR STATEMENTS BY A WITNESS

§ 6.10.1—Summary

The prior statements of a witness may, depending on the circumstances, be used to refresh recollection, as a recorded recollection, or for impeachment. Some prior statements are admissible only to impeach, others are admissible as substantive evidence. These principles apply whether the witness is a police officer or a civilian. There are some distinctions between statements given under oath and other sorts of statements. There are other distinctions that relate to the availability of the witness to testify at trial. Other distinctions relate to the use for which the prior statement is offered. As long as the statement is that of a witness at trial, Confrontation Clause issues of the sort discussed in § 6.9 do not arise.

§ 6.10.2—Use of Prior Testimony

Under CRE 804(b)(1), the former testimony of a witness is not hearsay, and is generally admissible, as long as the witness is unavailable, and as long as there was a full and fair opportunity to cross-examine the witness at the former hearing. Crawford v. Washington, 541 U.S. 36 (2004), does not apply when there was a full and fair opportunity for the defendant to cross-examine the witness at the time the prior statement was made.

Specifically, CRE 804(b)(1) provides that former testimony of a witness is not hearsay if (1) the witness is "unavailable" (as defined under CRE 804(a)); (2) the witness testified under oath; and (3) the party against whom the testimony is offered had "an opportunity and similar motive to develop the testimony" at the prior hearing. If these requirements are met, the testimony is not hearsay and may be used as substantive evidence.

The term "unavailable" is defined in CRE 804(a) to include a witness who is exempted from testifying on the ground of some privilege, who refuses to testify despite a court order, who testifies to a lack of memory, who is unable to be present due to death or illness, or who is not present despite reasonable efforts by the proponent of the testimony to secure the presence of the witness. Only the last exception creates significant difficulty. The trial court must decide whether the proponent has made good faith efforts to obtain the presence of the witness. See, e.g., People v. Franklin, 782 P.2d 1202 (Colo. App. 1989) (there was no showing of a good faith effort after the defense provided some information as to the whereabouts of the witness); People v. Arguello, 737 P.2d 436 (Colo. App. 1987) (a good faith effort was made when the prosecution brought a child witness to the state from Texas for two prior trials, but the child's parents refused to bring the child for a third trial).

§ 6.10.3—Use of Prior Statements to Refresh Recollection

Frequently, a prior statement of a witness is used to refresh the witness's recollection. Under CRE 612, this is a proper purpose. The underlying principle is that anything may be used to refresh the recollection of a witness and, once the witness's recollection is refreshed, the witness testifies from his or her own refreshed memory. CRE 612; People v. Clary, 950 P.2d 654 (Colo. App. 1998). Because the memory of the witness has been refreshed, and the witness is now testifying from that refreshed memory, the Confrontation Clause is not implicated.

Before using a statement to refresh recollection, the proponent should:

• Make some showing that the witness's memory is lacking;
• Make some showing that some item will refresh the witness's recollection;
• Show the refreshing item to the witness;
• Make a showing that the witness's recollection is now refreshed; and
• Have the witness testify from his or her refreshed memory.

CRE 612; Bailin, et al., Colorado Evidentiary Foundations (1997).

Obviously, if the witness still must refer to the document during the testimony and appears to be reading from it, his or her recollection has not been "refreshed" and CRE 612 does not apply. In this situation, the comments relating to recorded recollection in § 6.10.4 apply.

Under CRE 612, if the witness has refreshed his or her recollection either...