Chapter 9 - § 9.5 • REHABILITATION AFTER IMPEACHMENT BY EVIDENCE OF WITNESSES'S CHARACTER FOR UNTRUTHFULNESS

• Jurisdiction: Colorado

§ 9.5 • REHABILITATION AFTER IMPEACHMENT BY EVIDENCE OF WITNESSES'S CHARACTER FOR UNTRUTHFULNESS

§ 9.5.1—Introduction

A witness's credibility may be impeached under CRE 608(a) with evidence that he or she has a character for untruthfulness. Under Rule 608(b), that witness may be impeached with evidence of prior bad acts that have a bearing on credibility, subject to CRE 403's requirement that the evidence not be more prejudicial than probative. Under FRE 609, a witness's character may be impeached for untruthfulness by evidence of a criminal conviction. Colorado, however, has no Rule 609. In Colorado, "conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness." C.R.S. § 13-90-101. Where the conviction is of a testifying criminal defendant, the "defendant's prior felony convictions may be used to impeach his credibility if he chooses to testify." People v. Clark, 214 P.3d 531, 539 (Colo. App. 2009), aff'd on other grounds, 232 P.3d 1287 (Colo. 2010); People v. Sommers, 200 P.3d 1089, 1095 (Colo. App. 2008).

Allowing inquiry into "details that go beyond the face of the conviction may lead to wasteful collateral disputes requiring witness testimony about the way in which the [prior] crime was committed." Roger Park & Tom Lininger, The New Wigmore: Treatise on Evidence: Impeachment and Rehabilitation § 3.4 (2021 Supp.). As a result, a trial court must make a pragmatic decision whether the probative value of the specific details is substantially outweighed by the policy considerations of CRE 403. See Charles T. McCormick, McCormick on Evidence § 49 (George E. Dix et al. eds., 8th ed. 2020).

Generally, a record of a witness's conviction of a crime, once introduced for impeachment purposes, should be left unexplained. People v. Clark, 370 P.3d 197, 208 (Colo. App. 2015). Because impeachment by evidence of a defendant's character for untruthfulness using a prior conviction is separate and distinct from evidence of a witness's bad character under CRE 404, "a prosecutor's inquiry into prior convictions is typically limited to the name of the offense and a brief recital of the circumstances." Clark, 214 P.3d at 539. It is beyond the scope of this chapter to discuss when such impeachment evidence is available, and we therefore assume that in a particular case, it has been properly admitted. Rehabilitation in such a circumstance is available.

§ 9.5.2—Foundation for Rehabilitation After Impeachment of Character

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