Rule 43 EVIDENCE.

• Jurisdiction: Colorado

Rule 43. Evidence.

(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these Rules, the Colorado Rules of Evidence, or any statute of this state or of the United States (except the Federal Rules of Evidence).

(b) to (d) Repealed.

(e) Evidence on Motions. When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, or the court may direct that the matter be heard wholly or partly on oral testimony or depositions. This shall include applications to grant or dissolve an injunction and for the appointment or discharge of a receiver.

(f) to (h) Repealed.

(1) (1) Request for absentee testimony. A party may request that testimony be presented at a trial or hearing by a person absent from the courtroom by means of telephone or some other suitable and equivalent medium of communication. A request for absentee testimony shall be made by written motion or stipulation filed as soon as practicable after the need for absentee testimony becomes known. The motion shall include:

(A) The reason(s) for allowing such testimony.

(B) A detailed description of all testimony which is proposed to be taken by telephone or other medium of communication.

(C) Copies of all documents or reports which will be used or referred to in such testimony.

(2) Response. If any party objects to absentee testimony, said party shall file a written response within 3 days following service of the motion unless the opening of the proceeding occurs first, in which case the objection shall be made orally in open court at the commencement of the proceeding or as soon as practicable thereafter. If no response is filed or objection is made, the motion may be deemed confessed.

(3) Determination. The court shall determine whether in the interest of justice absentee testimony may be allowed. The facts to be considered by the court in determining whether to permit absentee testimony shall include but not be limited to the following:

(A) Whether there is a statutory right to absentee testimony.

(B) The cost savings to the parties of having absentee testimony versus the cost of the witness appearing in person.

(C) The availability of appropriate equipment at the court to permit the presentation of absentee testimony.

(D) The availability of the witness to appear personally in court.

(E) The relative importance of the issue or issues for which the witness is offered to testify.

(F) If credibility of the witness is an issue.

(G) Whether the case is to be tried to the court or to a jury.

(H) Whether the presentation of absentee testimony would inhibit the ability to cross examine the witness.

(I) The efforts of the requesting parties to obtain the presence of the witness.

If the court orders absentee testimony to be taken, the court may issue such orders as it deems appropriate to protect the integrity of the proceedings.

Source: (a) amended, (b), (c), (d), (f), (g), and (h) repealed, and (i) added March 17, 1994, effective July 1, 1994; (i) amended and adopted October 20, 2005, effective January 1, 2006.

Cross references: For general provisions concerning evidence and witnesses, see article 25 of title 13, C.R.S. and part 1 of article 90 of title 13, C.R.S.; for rights of examination of party in interest by adverse party, see § 13-90-116, C.R.S.; for costs, see C.R.C.P. 54(d); for admissibility of evidence of lost instruments, see § 13-25-113, C.R.S.; for admissibility of copies of lost instruments and records, see §§24-72-101 and 24-72-111, C.R.S.; for admissibility of copies of documents kept by county officers, see § 30-10-103, C.R.S.

ANNOTATION

I. General Consideration.

II. Form and Admissibility.

III. Evidence on Motions.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Trials: Rules 38-53", see 23 Rocky Mt. L. Rev. 571 (1951). For article, "A Deposition Primer, Part I: Setting Up the Deposition", see 11 Colo. Law. 938 (1982). For article, "2006 Amendments to the Civil Rules: Modernization, New Math, and Polishing", see 35 Colo. Law. 21 (May 2006).

The plaintiff always has the burden of proving his or her case. Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972).

Once a "prima facie" case is established, the burden of going forward to rebut the "prima facie" case shifts to the defendant. Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972).

The burden of going forward is met when the defendant introduces enough evidence to present a jury question where formerly there was a "prima facie" case. Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972).

Lack of direct testimony as to cause of action is not necessarily fatal to plaintiff's case, as causation may be shown by circumstantial evidence alone and jurors may draw upon ordinary human experience as to the reasonable probabilities. Irish v. Mountain States Tel. & Tel. Co., 31 Colo. App. 89, 500 P.2d 151 (1972).

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