Colo. R. Evid. 402

As amended through Rule Change 2023(9), effective April 13, 2023
Rule 402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Colorado, by these rules, or by other rules prescribed by the Supreme Court, or by the statutes of the State of Colorado. Evidence which is not relevant is not admissible.

CRE 402

Annotation Law reviews. For article, "A Deposition Primer, Part II: At the Deposition", see 11 Colo. Law. 1215 (1982). For article, "The Admissibility of Hypnotically Refreshed Testimony in Criminal Cases", see 12 Colo. Law, 600 (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, "Tips for Working With Evidence in Domestic Relations Cases", see 31 Colo. Law. 87 (June 2002). Admissibility of relevant evidence. If evidence is relevant, it is admissible, unless its prejudicial effect outweighs its probative value. People v. Ortega, 672 P.2d 215 (Colo. App. 1983). Determination of relevance within trial court's discretion. The determination of whether proffered evidence is relevant is within the sound discretion of the trial court; and, if the evidence has probative value in determining the central issue in dispute, the trial court's decision will not be reversed unless it is shown that there was an abuse of discretion. People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. Schwartz, 678 P.2d 1000 (Colo. 1984); People v. McKeehan, 732 P.2d 1238 (Colo. App. 1986), cert. denied, 753 P.2d 243 (Colo. 1988); Cherry Creek Sch. Dist. v. Voelker, 859 P.2d 805 (Colo. 1993). Defendant made no showing that his theory had attained the degree of reliability which would warrant its admission at trial and the determination here of whether the tendered testimony was relevant and not speculative were matters within the discretion of the trial court. People v. Wilson, 678 P.2d 1024 (Colo. App. 1983), cert. denied, 469 U.S. 843, 105 S. Ct. 148, 83 L. Ed. 2d 87 (1984). It is within the special province and competence of the trial court to determine the relevance of evidence at trial. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982). A trial court abuses its discretion in excluding relevant evidence only if it makes a decision that is manifestly arbitrary, unreasonable, or unfair. People v. McCoy, 944 P.2d 577 (Colo. App. 1996); People v. Harris, 43 P.3d 221 (Colo. 2002). Trial court's discretion to determine relevancy is broad. People v. Gutierrez, 1 P.3d 241 (Colo. App. 1999). 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). Evidence properly excluded where it has no direct connection with charged crime. While evidence may be relevant to some degree concerning the defendant's theory that other persons committed the crime, it is properly excluded where it has no direct connection with the crime of which the defendant is charged. People v. White, 632 P.2d 609 (Colo. App. 1981). Admission or exclusion of evidence of an experiment rests largely in the discretion of the trial court. People v. McCombs, 629 P.2d 1088 (Colo. App. 1981). Conditions under which an experiment is conducted are required to be substantially similar to those existing at the time of the occurrence; however, this requirement does not render an experiment inadmissible because it is based on a disputed reconstruction of that crime. People v. McCombs, 629 P.2d 1088 (Colo. App. 1981). Admission of allegedly prejudicial photograph not error if probative. Where an allegedly prejudicial photograph is probative with respect to a trial's pivotal issue, its admission into evidence is not error. People v. Harris, 633 P.2d 1095 (Colo. App. 1981). 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). 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). Admissibility of identification testimony. People v. Gonzales, 631 P.2d 1170 (Colo. App. 1981). Use of alias to prove prior convictions and for sentencing as an habitual criminal is relevant to the crime charged. People v. Talley, 677 P.2d 394 (Colo. App. 1983). Evidence of use of aliases is admissible if proof of an alias is relevant to an issue before the court. People v. DeHerrera, 680 P.2d 848 (Colo. 1984). The court did not abuse its discretion in denying the defendant's motion for a mistrial on the basis that the court allowed cumulative evidence of the defendant's flight to be admitted into evidence. Even though the prosecution elicited testimony during cross-examination that the defendant was living under an assumed name, without establishing the relevance of the evidence as instructed by the court, the court issued a curative instruction to counter any unfair prejudice to the defendant. People v. Baca, 852 P.2d 1302 (Colo. App. 1992). Court did not err in failing to declare a mistrial sua sponte after expert witness gave opinion testimony as to the truth of child victim's allegation. A curative instruction is generally sufficient to overcome an evidentiary error and is insufficient only when the evidence is so prejudicial that, but for its exposure, the jury might not have found defendant guilty. People v. Anderson, 183 P.3d 649 (Colo. App. 2007). To resolve an issue of relevancy, a court must determine whether proffered evidence relates to a fact that is of consequence to determination of action, whether evidence makes existence of a consequential fact more probable or less probable than it would be without such evidence, and whether probative value of evidence is substantially outweighed by danger of unfair prejudice. People v. Carlson, 712 P.2d 1018 (Colo. 1986). Alleged murder victim's statements made shortly after alleged perpetrator had beaten or threatened to kill the victim are admissible in a prosecution of the alleged perpetrator for murdering the victim. People v. Hulsing, 825 P.2d 1027 (Colo. App. 1991). Admission of statements by witnesses commenting on other witnesses' veracity not error where comments were elicited to explain police officers' investigative techniques and to rebut defense arguments. People v. Davis, __ P.3d __ (Colo. App. 2010). Thermostat manufactured two years after the thermostat at issue that carried the same model number and functioned and operated the same way but that had a component part that was not crimped as was the one at issue was properly admitted into evidence against the manufacturer since it was admitted after the manufacturer's expert conceded in voir dire that the only significant difference was the absence of crimping, which, he testified, would not affect the high end of the temperature range. Simon v. Coppola, 876 P.2d 10 (Colo. App. 1993). Log of the results of final inspections of thermostats of the same model as the one at issue that were manufactured from one year before the model at issue to three years after and that showed that, one year after, a lot of 200 thermostats had been rejected because the crimp was too big in the component part at issue was properly admitted into evidence against the manufacturer where the trial court concluded the log "cut both ways" because it showed not only that the manufacturer's quality control program had discovered the problem but also the potential for error in the manufacturing process. The court also concluded that the log would help the jury better understand the manufacturing process. Simon v. Coppola, 876 P.2d 10 (Colo. App. 1993). 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). In sexual assault case, evidence of defendant's statements that "Mexicans were bred for sex" and Spanish-English dictionaries containing underlined words of a sexual and reproductive nature were relevant to issue of whether defendant knowingly caused submission of Mexican national victims. People v. Braley, 879 P.2d 410 (Colo. App. 1993). Evidence that defendant refused to consent to search of apartment was relevant and not unfairly prejudicial to impeach his testimony that he had not lived in the apartment for the last six days and did not know there were drugs in the apartment. Evidence of refusal to consent to search could give rise to the reasonable inference that the defendant had dominion and control over the apartment. People v. Chavez, 190 P.3d 760 (Colo. App. 2007). Evidence irrelevant where no logical relation to contested issues at trial. In arson case, underlying reasons for insurance company's refusal of coverage had no logical relation to any motive defendant may have had prior to fire nor probative of any elements of the crime charged and was irrelevant. People v. Carlson, 677 P.2d 390 (Colo. App. 1983), aff'd, 712 P.2d 1018 (Colo. 1986). Testimony that defendant had been discharged from his job after the incident was inadmissible, since such act had no relevance to any contested issue. People v. Jones, 743 P.2d 44 (Colo. App. 1987). Evidence of theft defendant's civil suit against victims was properly excluded as irrelevant where no prosecution witnesses were named parties in civil suit, and suit referred to dispute with victims at time defendant was discharged from victim's employment, and thus could not contradict or negate defendant's state of mind at time of commission of thefts. People v. Stowers, 728 P.2d 356 (Colo. App. 1986). When admission of irrelevant evidence constitutes abuse of discretion and reversible error. Admission of irrelevant evidence is not necessarily reversible error. But where such evidence contributes to conviction of defendant, it is reversible error and abuse of trial court's wide discretion in determining relevancy of evidence. People v. Carlson, 677 P.2d 390 (Colo. App. 1983), aff'd, 712 P.2d 1018 (Colo. 1986). Evidence excluded as irrelevant. People v. Loscutoff, 661 P.2d 274 (Colo. 1983). Although evidence of a defendant's compliance with applicable industry standards in a tort case is both relevant and admissible for purposes of determining whether the defendant either breached or satisfied the duty of care it owed to an injured plaintiff, such evidence is not conclusive on the issue of due care. Yampa Valley Elec. v. Telecky, 862 P.2d 252 (Colo. 1993). Electrical utility was not entitled to a jury instruction creating a rebuttable presumption that adherence to industry standards presumes compliance with "accepted good engineering practice in the electric industry", since whether the utility complied with accepted good engineering practices, or whether it exercised due care is best determined by the jury after it has examined the relevant evidence and been properly instructed concerning the effect of the utility's compliance with the industry's minimum standards. Yampa Valley Elec. v. Telecky, 862 P.2d 252 (Colo. 1993). Because property assessors are now constitutionally required to determine the actual or market value of property with an appraisal using the market approach, property tax assessments are relevant evidence of the value of real property. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007). Applied in People v. District Court, 652 P.2d 582 (Colo. 1982); People v. McGhee, 677 P.2d 419 (Colo. App. 1983); 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).