Chapter 6 - § 6.11 • REAL AND DEMONSTRATIVE EVIDENCE

• Jurisdiction: Colorado

§ 6.11 • REAL AND DEMONSTRATIVE EVIDENCE

§ 6.11.1—Real Evidence

Real evidence is evidence that actually played a part in the offense, e.g., the murder weapon, the defective product, etc. Such evidence permits the trier of fact to derive its own impression of the case directly from the evidence itself, rather than having to rely upon others' perceptions. CRE 901 provides that authentication or identification of such an item is satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims." A trial court's determination of this issue will not be disturbed absent a clear abuse of discretion. Pyles-Knutzen v. Board of County Comm'rs, 781 P.2d 164 (Colo. App. 1989). Of course, real evidence must also be relevant, requiring a showing that it played a part in the case and that it is now in substantially similar condition.

To satisfy the basic authentication foundation, the proponent of the item must show that:

• The witness previously observed the object;
• The witness identifies the exhibit as the object previously seen; and
• The exhibit is in substantially the same condition as when previously seen.

A witness need not be certain the exhibit is the actual item previously observed, so long as it "appears" the same or "looks like" the object: McClellan v. State Dep't of Revenue, 731 P.2d 769 (Colo. App. 1986) (officer's testimony that revocation notice, breath test records, and computer printouts of arrest reports were accurate was sufficient to support their admission in revocation proceeding); People v. Beltran, 634 P.2d 1003 (Colo. App. 1981) (the gun appeared to be the same, although the officer had not marked it at the scene); Cokley v. People, 449 P.2d 824 (Colo. 1969) (uncertainty ordinarily goes to the weight of the evidence, not to admissibility. The witness's testimony that the shotgun looked like the one used was sufficient to support admissibility, although the one used had a stock and the gun recovered from the defendant had none); Claxton v. People, 434 P.2d 407 (Colo. 1967) (the victim's testimony that the clothing looked like that which she wore at time of incident was sufficient).

Proof of authenticity may be provided by circumstantial evidence. People v. Bedwell, 506 P.2d 365 (Colo. 1973) (a tire iron was admitted although the victim had not seen it used against him, when his injuries were consistent with such an instrumentality, and when the tire iron had not been present before the offense)...