Chapter 6 - § 6.8 • HEARSAY ISSUES UNDER THE RULES OF EVIDENCE

• Jurisdiction: Colorado

§ 6.8 • HEARSAY ISSUES UNDER THE RULES OF EVIDENCE

§ 6.8.1—Hearsay Generally

Hearsay is defined by CRE 801(c) as "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A "statement" includes both "an oral or written assertion [and] nonverbal conduct of a person, if it is intended by him to be communicative." CRE 801(a).

The basic hearsay rule is that hearsay is not admissible to prove the truth of the matter asserted. The bases for this rule are concerns about the reliability of such secondhand statements and concerns about the constitutional right to confront and cross-examine. The hearsay rule is significantly restricted by the various exceptions created in CRE 803, 804, and 807.

In criminal cases, the introduction of hearsay against the defendant by the prosecution implicates the right to confront and cross-examine. The fact that a particular statement fits within a hearsay exception cannot trump a constitutional prohibition on the admission of that statement. This topic is addressed in § 6.9.

§ 6.8.2—Statements by Defendant

As noted and discussed in § 6.5.1, the statements of the defendant are excluded from the definition of hearsay, when they are offered by the prosecution, as the admissions of a party-opponent. CRE 801(d)(2). Such statements are hearsay when offered by the defendant.

§ 6.8.3—Use of Dispatch Statements

A witness may relate the contents of radio transmissions the witness overheard, so long as the contents are not offered for their truth, but only for another legitimate purpose, such as to explain why the witness went to a certain location, etc. CRE 801(c); People v. Drake, 748 P.2d 1237, 1246 (Colo. 1988). A statement that is not offered to prove the truth is technically not hearsay. CRE 801(c).

Pursuant to CRE 105, upon request, the adverse party may insist that the jury be immediately informed of the limited purpose for which the contents of the transmission are offered. COLJI-Crim. D:02. However, it is not error to fail to give this limiting instruction sua sponte. People v. Hurd, 682 P.2d 515 (Colo. App. 1984).

Of course, if the statements are being offered to prove that whatever was related over the radio actually happened, then they are hearsay and are inadmissible under CRE 801 unless they fall within an exception to the ban.

Since in reality a jury may have difficulty giving the statements only their proper limited purpose, the...