THE COLORADO RULES OF EVIDENCE: AN OVERVIEW

The types of evidence that may be presented in court, and the methods that can be used to present that evidence are governed by various evidentiary rules. The main sources of evidentiary rules are the rules found in the Colorado Rules of Evidence (CRE). The CRE may be found in Volume 12 of the Colorado Revised Statutes (CRS). Other evidentiary rules are found in various statutes in the CRS, in the Colorado Rules of Criminal Procedure (Crim. P.), and in the Colorado Rules of Civil Procedure (C.R.C.P.). In addition, there are various decision of the Colorado Supreme Court and Court of Appeals interpreting these rules and statutes.

It is important to remember that, in the context of criminal cases, the CRE generally only apply at trial. The CRE do not apply to grand jury proceedings, bail hearings, preliminary hearings, extradition proceedings, hearings concerning the admissibility of evidence, sentencing hearings, revocation proceedings, contempt proceedings or traffic infractions. The one exception to this limitation are the rules relating to privilege; generally, those rules apply at all proceedings.

The CRE apply generally to civil actions.

Evidence is presented through witnesses, exhibits and stipulations. A lawyer calling a witness may ask questions of that witness in direct examination. Direct examination questions should be open-ended, allowing the witness to present the information to the jury of judge. Opposing counsel may then question the witness through cross-examination. Leading questions, that is questions that suggest what the answer should be, are allowed in cross-examination. Generally, the lawyer calling the witness is allowed a re-direct examination, to address any matters that were raised for the first time during cross-examination. Some judges allow re-cross examination on those matters discussed during re-direct examination.

It is the duty of the lawyers trying a case to make sure that the rules of evidence are followed. Juries are specifically instructed about this duty, and are instructed not to make any assumptions about what the answer would have been had the judge allowed the question to be answered.

Sometimes, questions about the admissibility of evidence can be determined prior to trial. For example, as discussed in 13.9 below, there are special rules that must be followed when a party wants to use evidence of other crimes against a witness or a defendant. The admissibility of other crimes evidence usually can, and should, be resolved before trial.

On the other hand, many evidence issues do not arise until the trial is in progress. Objections to the way in which an attorney is questioning a witness, or to the answer given by a witness to a seemingly innocuous question must be resolved by the judge during trial. Objection is generally made by an attorney stating “Objection” and giving the basis of the objection. Sometimes, the judge can rule immediately, sometimes the judge will ask for a response from opposing counsel, and in some cases the judge may need to send the jury out to hear testimony and argument about the objection.

A trial judge who agrees with the objections will sustain the objection; if the judge disagrees with the objection, the judge will overrule the objection. Sometimes, an attorney will ask to make a further record concerning the objection, known as an offer of proof. An offer of proof completes the record for any appellate court that might review the case. For example, if the trial court rules that certain evidence should not be admitted, the lawyer seeking to admit that evidence may make an offer of proof – outside the hearing of the jury – of exactly what the evidence would have been.

The rules of evidence are designed to ensure fair trials, with the jury getting to hear all of the evidence it needs to hear, without slowing trials down with unnecessary or cumulative evidence. Trial judges are given wide latitude in their rulings on evidence, and a judge’s ruling on an evidentiary issue will not result in a reversal unless it was clearly erroneous as well as serious enough to have affected the outcome of the trial.