Chapter 8 - § 8.3 • PRIOR CONVICTIONS

• Jurisdiction: Colorado

§ 8.3 • PRIOR CONVICTIONS

§ 8.3.1—Introduction

Prior convictions may be used to bear upon a witness's credibility. People v. Medina, 583 P.3d 293 (Colo. 1978); C.R.S. § 13-90-101. While the Federal Rules of Evidence have a specific provision for prior convictions in FRE 609, Colorado has no corresponding rule. Instead, Colorado has codified impeachment with prior convictions under C.R.S. § 13-90-101. Prior convictions may not be used to "illustrate that a defendant is of bad character and likely acted accordingly in the present case." People v. Clark, 214 P.3d 531, 535 (Colo. App. 2009). They are only admissible to impeach credibility. Id.

Not all convictions qualify for impeachment. Traffic offenses cannot impact a witness's credibility in civil or criminal trials. C.R.S. § 42-4-1714. Juvenile adjudications do not qualify as convictions for impeachment purposes. People v. D'Apice, 735 P.2d 882 (Colo. App. 1986). Most misdemeanor convictions will also be barred. See People v. Gillis, 883 P.2d 554 (Colo. App. 1994); C.R.S. § 13-90-101.

To impeach a witness with a prior conviction under C.R.S. § 13-90-101, that conviction must be a felony. A conviction from another state that would be a felony if it happened in Colorado qualifies under the statute. Lacey v. People, 442 P.2d 402 (Colo. 1968). Pleas of nolo contendere are also counted as convictions. Id. Even felony deferred judgments that have not yet been completed are available to attorneys for impeachment purposes. People v. Vollentine, 643 P.2d 800 (Colo. App. 1982).

Where the prior conviction entered in a military tribunal, Colorado's statute requires a two-part admissibility test. People v. Apodaca, 712 P.2d 467 (Colo. 1985). The first prong requires that the maximum military penalty be substantially equivalent to felony punishments in Colorado. Id. The second prong requires that the conduct itself would qualify as a felony if it happened in Colorado. Id.

In criminal trials, there is no time bar based on a felony conviction's age. C.R.S. § 13-90-101. In civil actions, however, convictions entered more than five years prior to the testimony are not admissible. Id.

If there is a statutorily qualifying prior felony conviction, then the court will admit it without engaging in a balancing test of probative value versus prejudicial effect under CRE 403. People v. Diaz, 985 P.2d 83 (Colo. App. 1999). The reason is that Colorado has specifically omitted a Rule 609 and instead chosen to govern this method of...