Chapter 8 - § 8.1 • INTRODUCTION, LIMITATIONS, AND EXCEPTIONS

• Jurisdiction: Colorado

§ 8.1 • INTRODUCTION, LIMITATIONS, AND EXCEPTIONS

§ 8.1.1—Introduction

Impeachment is the process of attacking a witness's credibility. Colorado allows any party to impeach any witness, "including the party calling [that witness]." CRE 607. The ability to impeach your own witness covers both lay and expert witnesses, and an examiner may accomplish this with leading questions. Id.; Wallbank v. Rothenberg, 74 P.3d 413 (Colo. App. 2003).

While attorneys generally enjoy wide latitude in impeaching witnesses, courts "may limit witness examination if necessary to assist the truth-finding process, to avoid wasting time, and to protect witnesses from harassment, undue embarrassment, or danger to his or her personal safety." Merritt v. People, 842 P.2d 162, 166 (Colo. 1992). Impeachment may also be limited by its value in relation to other evidence or other opportunities for impeachment. See People v. Garcia, 17 P.3d 820, 828 (Colo. App. 2000) ("even if the court abused its discretion by not allowing defendant to cross-examine the witness about her prior inconsistent statements concerning whether she was driving the car with defendant on the night of the aggravated robbery, such error was harmless because she had been impeached on more significant matters").

However, a trial court's excessive limitation of impeachment can rise to the level of constitutional error, especially "if the cross-examination concerns the witness's bias, prejudice, or motive for testifying [....]" People v. Martinez, 987 P.2d 884, 886 (Colo. App. 1999).

In general, Colorado recognizes several areas of impeachment based around a witness's character for truthfulness, including bias, prejudice, motive or interest; some criminal convictions or other bad acts; and prior inconsistent statements.

Attorneys can use impeachment to point out issues that may color or influence a witness's testimony, such as bias, motive, prejudice, or an interest in the outcome of the case. CRE 607; People v. Bowman, 669 P.2d 1369 (Colo. 1983). Attorneys are generally given leeway to impeach with this type of material. See, e.g., Merritt, 842 P.2d at 166 (impeachment using racial prejudice); People v. Trujillo, 749 P.2d 441 (Colo. App. 1987), overruled on other grounds, 973 P.2d 1234 (Colo. 1999) (impeachment using gang membership). Impeachment showing bias, motive, prejudice, or an interest in the outcome of a case can also come from plea bargains offered to, or accepted by, the witness. People v. Carrillo, 946 P.2d 544 (Colo. App. 1997), aff'd on other grounds, 974 P.2d 478 (Colo. 1999) (defendant may attack witness's credibility with questions regarding a plea agreement); Merritt, 842 P.2d 162 (grant of immunity was valid cross-examination subject of juvenile witness).

In the right circumstances, impeachment with plea bargains has the unique feature of bridging multiple areas and allowing attorneys to impeach a witness on several fronts with the same evidence. This is because Colorado also permits impeachment with some criminal convictions. CRE 404; C.R.S. § 13-90-101.

While the Federal Rules of Evidence contain a specific section for impeachment with proof of a prior conviction, Colorado has no corresponding rule. FRE 609. Instead, Colorado has codified this method of impeachment. C.R.S. § 13-90-101. The statute allows prior felony convictions to affect the witness's credibility. Id. In criminal cases, a conviction's age will not bar admissibility. Id. In civil...