Colo. R. Evid. 401

As amended through Rule Change 2020(24), effective July 22, 2020
Rule 401 - Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

(Federal Rule Identical.)

Law reviews: For article, "Stretching Relevancy", see 22 Colo. Law. 1177 (1993).

CRE 401

Annotation Law reviews. For article, "Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview", see 50 U. Colo. L. Rev. 277 (1979). For article, "The Admissibility of Hypnotically Refreshed Testimony in Criminal Cases", see 12 Colo. Law. 600 (1983). For article, "Discovery and Admissibility of Police Internal Investigation Reports", see 12 Colo. Law. 1745 (1983). For casenote, "People v. Quintana: How 'Probative' Is This Colorado Decision Excluding Evidence of Post-Arrest Silence?", see 56 U. Colo. L. Rev. 157 (1984). For article, "Mythological Rules of Evidence", see 16 Colo. Law. 1218 (1987). For article, "Hypnotically Refreshed Testimony in Trials-A New Approach", see 18 Colo. Law. 632 (1988). For article, "Tips for Working With Evidence in Domestic Relations Cases", see 31 Colo. Law. 87 (June 2002). For article, "The Admissibility of Evidence of the Pre-Trial Exercise of Constitutional Rights", see 37 Colo. Law. 81 (July 2008). There is no qualitative difference between direct and circumstantial evidence. People in Interest of M.S.H., 656 P.2d 1294 (Colo. 1983). Test for determining relevancy of real evidence is that such evidence must only be connected in some manner with either the perpetrator, the victim, or the crime. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Carlson, 677 P.2d 390 (Colo. App. 1983). As a general rule, facts which logically tend to prove or disprove the fact in issue or which afford a reasonable inference or shed light upon the matter contested are relevant. However, facts collateral to or bearing so remotely upon the issue that they afford only conjectural inference should not be admitted in evidence. People v. Botham, 629 P.2d 589 (Colo. 1981); People v. More, 668 P.2d 968 (Colo. App. 1983). If evidence is relevant and material, its admission is not error merely because the evidence is cumulative. People v. Salas, 902 P.2d 398 (Colo. App. 1994). An objection to the relevance of evidence does not include an objection that the evidence, if admissible, is unduly prejudicial under C.R.E. 403 because of the substantial difference in analysis trial courts perform under C.R.E. 403 and this rule. Am. Family Mut. Ins. Co. v. DeWitt, 216 P.3d 60 (Colo. App. 2008), aff'd, 218 P.3d 318 (Colo. 2009). Nexus required for relevancy. Without a nexus between the deceased's prior violent acts and the actions of the defendant, the occurrence of these prior violent acts would be of no consequence in the determination of the guilt or innocence of the defendant. People v. Lyle, 200 Colo. 236, 613 P.2d 896 (Colo. 1980). Establishment of fact through use of negative allowed. Evidence is not irrelevant simply because it tends to establish a fact through the use of a negative. People v. Bueno, 626 P.2d 1167 (Colo. App. 1981). When chain of custody necessary. Only where no single witness can establish the connection of evidence with the perpetrator, victim, or crime is an unbroken chain of custody of a specific item of evidence necessary in order to demonstrate relevancy. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981). Issues concerning alleged deficiencies in the chain of custody go to the weight rather than the admissibility of evidence. People v. Gomez, 632 P.2d 586 (Colo. 1981); People v. Moltrer, 893 P.2d 1331 (Colo. App. 1994). Relevance of silence upon arrest. Evidence of a defendant's failure to make a statement to the arresting officers may be so ambiguous and lacking in probative value as to be inadmissible as substantive evidence. People v. Quintana, 665 P.2d 605 (Colo. 1983). Silence generally is thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of others. People v. Quintana, 665 P.2d 605 (Colo. 1983). Silence has probative value and may be admissible. People v. Quintana, 665 P.2d 605 (Colo. 1983). Defendant's non-responsiveness at crime scene and at hospital not properly admitted since defendant's defense of dissociative state did not rely on defendant's state of mind at hospital or crime scene and was therefore irrelevant to whether defendant was sane at the moment she shot the victim, and danger of unfair prejudice and likelihood of misleading the jury far outweighed any possible probative value that testimony regarding the defendant's silence might have had. People v. Welsh, 80 P.3d 296 (Colo. 2003). Polygraph evidence inadmissible. Evidence of polygraph test results and testimony of polygraph examiners is per se inadmissible in a criminal trial. People v. Anderson, 637 P.2d 354 (Colo. 1981). While voice-print analysis testimony may be relevant, it is not sufficiently reliable to be admissible. People v. Drake, 748 P.2d 1237 (Colo. 1988). Hypnotically refreshed testimony is inadmissible. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982); People v. Rex, 689 P.2d 669 (Colo. App. 1984). A jury's ability to observe a witness' demeanor and analyze a witness' ability to perceive, remember, and articulate is so hampered by the hypnotic process that the probative value of such evidence cannot overcome its flaws. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982). From time of hypnosis forward. Testimony of a witness who has been questioned under hypnosis is per se inadmissible as to his recollections from the time of the hypnotic session forward. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982). Recorded pre-hypnosis recollections admissible. However, the witness is not incompetent to testify to pre-hypnosis recollections that have previously been unequivocally disclosed and recorded by tape recording, video tape, or by written statement. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982). Evidence gained from a hypnotic trance should be excluded. People v. Diaz, 644 P.2d 71 (Colo. App. 1981). Evidence gained in hypnotic state held properly excluded. People in Interest of M.S.H., 656 P.2d 1294 (Colo. 1983). Evidence relating to legal conclusions, and not to facts, properly excluded. Where the proffered evidence is relevant to the legal conclusion that the plaintiffs would like the courts to adopt, but not to the facts in issue, the evidence is properly excluded on relevancy grounds. Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982). In a wrongful death action, evidence of the surviving spouse's remarriage is irrelevant in that the damages in this type of action are calculated at the time of the death, and remarriage is highly speculative as proof in mitigation of damages. Barnhill v. Pub. Serv. Co., 649 P.2d 716 (Colo. App. 1982), aff'd, 690 P.2d 1248 (Colo. 1984); Ford v. Bd. of County Comm'rs, 667 P.2d 358 (Colo. App. 1983), cert. dismissed, 679 P.2d 579 (Colo. 1984). Document excluded as irrelevant. People v. Mascarenas, 666 P.2d 101 (Colo. 1983). Decedent's ability to accumulate wealth and loss of earning capacity in a certain business are relevant in a wrongful death action when a material part of the heir's net pecuniary loss is based on the loss of increase in her anticipated inheritance and the estimates and opinions presented were sufficiently grounded in fact to be admissible and probative on the issue of the decedent's earning capacity. Ford v. Bd. of County Comm'rs, 677 P.2d 358 (Colo. App. 1983), cert. dismissed, 679 P.2d 579 (Colo. 1984). Death threat evidence inadmissible because it failed to show defendant's consciousness of guilt. People v. Fernandez, 687 P.2d 502 (Colo. App. 1984). Evidence of a defendant's gang affiliation, which tended to prove the existence of a motive for killing the victim, was relevant where proof of intent to kill was a necessary part of the prosecution's case. People v. Mendoza, 860 P.2d 1370 (Colo. App. 1993). Gang affiliation of defendant was evidence of proof of intent to kill and was relevant. The danger of prejudice did not outweigh its probative value. People v. Mendoza, 876 P.2d 98 (Colo. App. 1994). Descriptions of defendant's clothing, which might be interpreted to imply a gang connection, held relevant and not unduly prejudicial where neither prosecutor nor witnesses used the word "gang". People v. Fernandez, 883 P.2d 491 (Colo. App. 1994). Testimony that victim of sexual assault underwent counseling at the suggestion of the department of social services held relevant to the occurrence of the sexual assault. People v. Myers, 714 P.2d 513 (Colo. App. 1985). Evidence of victim's rape fantasy and victim's statements regarding fantasy admissible under rape shield statute. The evidence and supporting statements should be admitted since the evidence and statements were material and relevant to the issue of consent. People v. Garcia, 179 P.3d 250 (Colo. App. 2007). Evidence of defendant's prior sexual relationship with victim subject to "prior sexual contact with actor" exception to rape shield statute. The evidence should be admitted since it is material and relevant to the issue of consent and supported defendant's theory of the case. People v. Garcia, 179 P.3d 250 (Colo. App. 2007). Evidence regarding poor health of theft victim's husband held relevant in light of the central issue of defendant's intention to permanently deprive victim of her money despite defendant's knowledge of the victim's circumstances. People v. Merchant, 983 P.2d 108 (Colo. App. 1999). Evidence relating to conditions of release recommended by disposition committee of state hospital was relevant to issue of future dangerousness of defendant, an essential component of statutory test for eligibility for release, and, therefore, directly related to fact of consequence to determination of the action. Vialpando v. People, 727 P.2d 1090 (Colo. 1986). Defense counsel characterized defendant who was alleged to have committed a sexual homicide as a "shy, quiet introvert, an immature child", therefore, pornographic pictures found in defendant's home were not admitted in error given that defendant was charged with crime involving mutilation of victim's genitalia and evidence of such photographs made it more likely that defendant had the knowledge requisite to perpetrate the mutilation. People v. Masters, 33 P.3d 1191 (Colo. App. 2001), aff'd on other grounds, 59 P.3d 979 (Colo. 2002). Exclusion of testimony concerning commission of a crime by someone other than the defendant was proper, where it concerned a crime similar in character but remote in time from the crime charged. People v. Thompson, 950 P.2d 608 (Colo. App. 1997). Evidence directly connecting an alternate suspect to the crime with which defendant is charged is not required to render admissible evidence that an alternate suspect committed a similar offense where there is an issue as to the identity of the perpetrator and the defendant desires to present alternate suspect evidence that bears on the issue, rather than merely showing motive or opportunity. People v. Muniz, 190 P.3d 774 (Colo. App. 2008). If a reasonable fact finder could find that the facts pertaining to the purported alternate suspect create a reasonable doubt as to the identity of the perpetrator, the evidence should be admitted. Accordingly, the district court abused its discretion in granting prosecution's motion in limine precluding defendant from presenting alternate suspect evidence. Because there was a reasonable probability that the exclusion of evidence prejudiced defendant, defendant's conviction must be reversed. People v. Muniz, 190 P.3d 774 (Colo. App. 2008). In a sexual assault trial, because evidence of a victim's virginity spans such a lengthy period of time, it includes remote, non-probative evidence of lack of sexual activity and thus is too broad and over-inclusive to be admissible in light of its prejudicial effect. Fletcher v. People, 179 P.3d 969 (Colo. 2007). Exclusion of irrelevant testimony offered in connection with a motion for a continuance. Trial court did not abuse its discretion by denying a car dealer's motion for continuance in a car buyer's action against the dealer so as to secure the attendance of a witness whose testimony could not have affected the outcome of the trial and was irrelevant. Jackson v. Rocky Mountain Datsun, Inc., 693 P.2d 391 (Colo. App. 1984). Testimony by the personnel director concerning her personal knowledge of defendant's outbursts of temper, including one directed toward the corporate victim's president which resulted in defendant's firing, were admissible as tending to establish a motive for defendant to retaliate against the corporation with bomb threats which were the basis of the charge against defendant. People v. Reaud, 821 P.2d 870 (Colo. App. 1991). Similar transaction evidence of whether the defendants engaged in a pattern or practice and a plan, scheme, or design in regard to the alleged fraud and violation of the Colorado Securities Act related to a material fact and the trial court erred in not allowing the plaintiffs to present such evidence where the probative value thereof was not substantially outweighed by the danger of unfair prejudice. Munson v. Boettcher & Co., Inc., 832 P.2d 967 (Colo. App. 1991). Admission of three weapons and holster not error since evidence was given connecting one of the weapons and holster to the robbery charged and since all weapons were similar to weapon used in robbery. People v. Ridenour, 878 P. 2d 23 (Colo. App. 1994). Defendant's statements regarding killing of other persons that defendant made during murder were linked in time and circumstance to that criminal episode, formed a part of that criminal episode, and were admissible as res gestae evidence of the crime. People v. Quintana, 882 P.2d 1366 (Colo. 1994). Evidence of defendant's prior drug dealing was properly admitted as res gestae. Detective's testimony explained to jury why police had set up drug buy with defendant. People v. Gomez, 211 P.3d 53 (Colo. App. 2008). Certain additional irrelevant information on a proferred document was prejudicial and could have been excised from the document, so its admission constituted error, albeit harmless error in the instance. Martin v. People, 738 P.2d 789 (Colo. 1987). In a driver's license revocation hearing, the reason for erratic driving is irrelevant to the issue of whether an officer has reasonable grounds to stop the vehicle. Kollodge v. Charnes, 741 P.2d 1260 (Colo. App. 1987). Evidence that defendant promised to pay plaintiff's medical bills after plaintiff slipped and fell on a puddle of water on the defendant's premises, and then reneged on the promise, is not admissible. A reasonable juror could not believe that the fact that the defendant made the promise and later reneged makes it more probable that the plaintiff had mental anguish caused by the defendant's negligence, or increases the degree of that anguish flowing from such negligence. Pennington v. Sears, Roebuck & Co., 878 P.2d 152 (Colo. App. 1994). A proponent of evidence protected by the rape shield statute (§ 18-3-407 ) must still make an offer of proof as to the relevance of the evidence. People v. Melillo, 25 P.3d 769 (Colo. 2001). Where probable cause to arrest or search is not at issue, it is improper to present to the jury evidence about obtaining an arrest or search warrant. Here, whether police had probable cause to arrest defendant was not at issue during the trial. The fact that the police believed they had enough evidence and that a judge found there was probable cause to arrest defendant had no rational tendency to prove that defendant committed the assault or that defendant was not justified in resisting the victim's use of force against him. Thus, admission of testimony concerning the arrest warrant was plain error. People v. Mullins, 104 P.3d 299 (Colo. App. 2004). The trial court's admission of the circumstances of the arrest to show consciousness of guilt was in error because the evidence did not show that the defendant was in flight or concealing himself to avoid arrest. The error, however, was harmless since there was overwhelming proof of the defendant's guilt. People v. Summitt, 132 P.3d 320 (Colo. 2006). Applied in Land v. Hill, 644 P.2d 43 (Colo. App. 1981); People v. Gallegos, 644 P.2d 920 (Colo. 1982); People v. District Court, 652 P.2d 582 (Colo. 1982); People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. McGhee, 677 P.2d 419 (Colo. App. 1983); People v. Hardy, 677 P.2d 429 (Colo. App. 1983); Danburg v. Realties, Inc., 677 P.2d 439 (Colo. App. 1984); People v. McKeehan, 732 P.2d 1238 (Colo. App. 1986), cert. denied, 753 P.2d 243 (Colo. 1988); People v. Tippett, 733 P.2d 1183 (Colo. 1987); People v. Trefethen, 751 P.2d 657 (Colo. App. 1987); People v. Dunlap, 975 P.2d 723 (Colo. 1999), cert. denied, 528 U.S. 893, 120 S. Ct. 221, 145 L. Ed. 2d 186 (1999). .