Colo. R. Evid. 403

As amended through Rule Change 2021(19), effective September 23, 2021
Rule 403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(Federal Rule Identical.)

CRE 403

Annotation Law reviews. For article, "Admissibility of Governmental Studies to Prove Causation", see 11 Colo. Law. 1822 (1982). For article, "DNA: The Eyewitness of the Future", see 18 Colo. Law. 1333 (1989). For article, "Impeachment", see 22 Colo. Law. 1207 (1993). For article, "Adverse Inferences Due to Invocation of the Fifth Amendment", see 25 Colo. Law. 43 (March 1996). For article, "Limits on Attorney-Expert Opinions in Jury Trials Under C.R.E. 403, 702, and 704 ", see 31 Colo. Law. 53 (March 2002). For article, "Polygraph Examinations: Admissibility and Privilege Issues", see 31 Colo. Law. 69 (November 2002). For article, "C.R.E. 403: The Balancing Test", see 33 Colo. Law. 41 (February 2004). For article, "The Admissibility of Evidence of the Pre-Trial Exercise of Constitutional Rights", see 37 Colo. Law. 81 (July 2008). For comment, "Reverse 404(b) Evidence: Exploring Standards When Defendants Want to Introduce Other Bad Acts of Third Parties", see 79 U. Colo. L. Rev. 587 (2008). For article, "The Expanding Use of the Res Gestae Doctrine", see 38 Colo. Law. 35 (June 2009). To show an abuse of discretion for excluding relevant evidence, appellant must establish that the trial court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Gibbens, 905 P.2d 604 (Colo. 1995); Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000); People v. Perry, 68 P.3d 472 (Colo. App. 2002); People v. Ortiz, 155 P.3d 532 (Colo. App. 2006). When reviewing a determination under this rule for abuse of discretion, the appellate court must afford the evidence the maximum probative value attributable by a reasonable fact-finder and the minimum unfair prejudice to be reasonably expected. Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000); People v. Ortiz, 155 P.3d 532 (Colo. App. 2006). If evidence is relevant, it is admissible unless its probative value is outweighed by the countervailing factors of this rule. Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990); People v. Hulsing, 825 P.2d 1027 (Colo. App. 1991). Probative value of the evidence was substantially outweighed by the danger of unfair prejudice, because: (1) It explained how defendant became a suspect, an important point because, absent this explanation, the jury would be left to speculate as to how defendant became a suspect and because defendant's defense was mistaken identity; and (2) it showed the thoroughness of the police investigation and analysis, which was important since defendant's counsel had challenged the reliability of DNA analysis, partly by suggesting that the investigator was biased. Additionally, witness only mentioned the DNA databases briefly, and did not testify as to how the defendant's DNA profile came to be in the second database. Finally, no evidence was presented as to how any individual's DNA profile might come to be in either DNA database, and no evidence was presented that defendant had previously engaged in any criminal activity. Under the circumstances, any inference of prejudice was speculative. People v. Harland, 251 P.3d 515 (Colo. App. 2010). In performing the C.R.E. 403 balance on review, the proffered evidence should be given its maximal probative weight and its minimal prejudicial effect. People v. District Court of El Paso County, 869 P.2d 1281 (Colo. 1994); People v. Cousins, 181 P.3d 365 (Colo. App. 2007). Colorado rules of evidence strongly favor the admission of evidence. The trial court has broad discretion in determining the admissibility of evidence, and the trial court's decision will only be reviewed for abuse of discretion. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff'd on other grounds, 71 P.3d 973 (Colo. 2003). "Unfair prejudice" should be construed to mean the prejudice from the proponent's evidence. Unfairly prejudicial evidence which may never be presented unless the defendant pursues it on cross-examination is not a sufficient basis to exclude otherwise admissible testimony. People v. District Court of El Paso County, 869 P.2d 1281 (Colo. 1994). Rule was designed to permit trial courts the discretion of excluding relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. McKown-Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev'd in part on other grounds, 801 P.2d 536 (Colo. 1990). An objection to the relevance of evidence does not include an objection that the evidence, if admissible, is unduly prejudicial under this rule because of the substantial difference in analysis trial courts perform under C.R.E. 401 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). Trial courts are accorded considerable discretion in determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence. People v. Clary, 950 P.2d 654 (Colo. App. 1997); Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000). Defendant entitled to present evidence creating doubt as to guilt. A defendant is entitled to all reasonable opportunities to present evidence which might tend to create a doubt as to his guilt. People v. Bueno, 626 P.2d 1167 (Colo. App. 1981). Evidence of similar transactions. Subject to this rule and the general rules of admissibility, evidence of similar transactions, when offered by the defendant, is admissible as long as it is relevant to the guilt or innocence of the accused. People v. Bueno, 626 P.2d 1167 (Colo. App. 1981); People v. Flowers, 644 P.2d 916 (Colo. 1982), appeal dismissed, 459 U.S. 803, 103 S. Ct. 25, 74 L. Ed. 2d 41 (1982). In eminent domain valuation hearing concerning street condemned by department of highways, trial court properly admitted evidence of sales occurring after date of valuation as comparable sales where sales were sufficiently comparable in character, close in time, and in location to be probative of the value of the street and where the risk that the commissioners would be prejudiced, confused, or misled was slight. State Dept. of Hwys. v. Town of Silverthorne, 707 P.2d 1017 (Colo. App. 1985), cert. dismissed, 736 P.2d 411 (Colo. 1987). When applying the liberal standard under C.R.E. 702 for determining the admissibility of scientific evidence, the court must also apply its discretionary authority under this rule to ensure that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence. People v. Shreck, 22 P.3d 68 (Colo. 2001). While C.R.E. 401 and C.R.E. 402 reflect liberal admission of evidence, C.R.E. 403, in conjunction with C.R.E. 702, tempers broad admissibility by giving courts discretion to exclude expert testimony unless it passes more stringent standards of reliability and relevance. People v. Martinez, 74 P.3d 316 (Colo. 2003). 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). Even though trial court did not consider whether evidence was unfairly prejudicial in ruling evidence was inadmissible, appellate court may consider whether it was unfairly prejudicial in determining whether trial court correctly determined the evidence was inadmissible. People v. Garcia, 179 P.3d 250 (Colo. App. 2007). When evidentiary ruling overturned as abuse. Only where the prejudicial effect of an evidentiary item outweighs its probative value will the trial court's evidentiary ruling be overturned as an abuse of discretion. People v. Abbott, 638 P.2d 781 (Colo. 1981); People v. Durre, 713 P.2d 1344 (Colo. App. 1985); People v. Wells, 754 P.2d 420 (Colo. App. 1987), rev'd on other grounds, 776 P.2d 386 (Colo. 1989). Admissibility of photographs into evidence in a homicide prosecution is a matter within the discretion of the trial judge, who must weigh their probative value against their potential inflammatory effect on the jury; the trial judge's determination will not be disturbed on review absent an abuse of discretion. People v. White, 199 Colo. 82, 606 P.2d 847 (1980); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Dillon, 633 P.2d 504 (Colo. App. 1981); People v. Unrein, 677 P.2d 951 (Colo. App. 1983); People v. Guffie, 749 P.2d 976 (Colo. App. 1987). The admission of a photograph of the dead victim for purposes of identification is not error solely because the defendant has stipulated to identity or because identity has been established through other witnesses. People v. Viduya, 703 P.2d 1281 (Colo. 1985). The trial court has broad discretion in determining the admissibility of photographs. People v. Crespin, 631 P.2d 1144 (Colo. App. 1981). Specific finding that probative value outweighs prejudicial effect not required. In admitting photographs into evidence in a criminal trial, a trial court need not specifically find that their probative value outweighs their prejudicial effect, as the alleged prejudice of photographic evidence is equally susceptible to evaluation by an appellate court. People v. Harris, 633 P.2d 1095 (Colo. App. 1981). Photographs are admissible to depict graphically anything a witness may have described in words, provided that the prejudicial effect of the photographs does not far outweigh their probative value. Photographs depicting the circumstances surrounding the victim's death, such as the appearance of the victim and the location and nature of the wounds, have probative value in a homicide case. People v. Kurts, 721 P.2d 1201 (Colo. App. 1986). Photographs taken of nude child victim at morgue were properly admitted in vehicular homicide trial to show the nature and extent of victim's injuries, an issue plainly relevant to the jury's assessment of the recklessness of defendant's conduct. People v. Scarlett, 985 P.2d 36 (Colo. App. 1998). Color photograph of murder victim at morgue, instead of black and white photograph, properly admitted to show trajectory of bullet through victim's head and because it was not particularly shocking or inflammatory in the context of a murder case. People v. Villalobos, 159 P.3d 624 (Colo. App. 2006). Photographs of severed elk heads were admissible to identify elk shot by defendant. People v. Dobson, 847 P.2d 176 (Colo. App. 1992). Photographs are not inadmissible solely because defendant has stipulated to matters sought to be proven thereby, or because such matters have been established through witnesses' testimony. People v. Dobson, 847 P.2d 176 (Colo. App. 1992). Photographs of exhumed murder victim's body admissible as evidence explaining why it was difficult to determine the cause of death and why the coroner was unable to make conclusive findings. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff'd on other grounds, 71 P.3d 973 (Colo. 2003). Videotape admissible where probative value outweighs unfair prejudice. People v. Avery, 736 P.2d 1233 (Colo. App. 1986); McKown-Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev'd in part on other grounds, 801 P.2d 536 (Colo. 1990). Probative value of videotape showing defendant smoking drugs outweighed the unfair prejudice. The videotape's probative value that contradicted defendant's claim that he was not living in the house at the time of the evidence seizure was more probative than the prejudice of defendant smoking drugs particularly since there was other evidence introduced at trial regarding defendant's drug use to which defendant did not object. People v. Warner, 251 P.3d 567 (Colo. App. 2010). Admission of victims' videotaped interview did not rise to the level of plain error where the victims and the official who had conducted the interview testified at trial and they were subject to cross-examination. People v. Burgess, 946 P.2d 565 (Colo. App. 1997). Mannequin used by prosecution to demonstrate how the victim was tied was not admitted as substantive evidence but was used only demonstratively. Testimony regarding the accuracy of such evidence must be given by a person having personal knowledge of the scene depicted, may not be based on hearsay statements, and is subject to cross-examination. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002). Police officers did not "vouch for" truthfulness of child rape victim by relating her statements following the crime. Therefore, no prejudice to defendant resulted from court's admission of their testimony. People v. Williams, 899 P.2d 306 (Colo. App. 1995). Trial court neither abused its discretion nor violated defendant's right to confrontation where defendant was prohibited from revealing to jury through cross-examination that witness was in custody in another state on unrelated charges where such testimony would have been cumulative and of little or no probative value and where defendant was otherwise provided with ample opportunity to impeach the witness' credibility by showing ulterior motive. People v. Griffin, 867 P.2d 27 (Colo. App. 1993). Court did not abuse its discretion by excluding evidence of previous miscarriage as unduly prejudicial. The court had well founded concerns that evidence of a miscarriage could make the victim appear promiscuous and divert the jury's attention. As well, the exclusion did not prevent or hamper the defendant from presenting a theory of the case. People v. Underwood, 53 P.3d 765 (Colo. App. 2002). Trial court's ruling not disturbed unless discretion abused. Unless an abuse of discretion is shown, the trial court's ruling on the admissibility of photographs into evidence will not be disturbed on review. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Young, 710 P.2d 1140 (Colo. App. 1985); Williamsen v. People, 735 P.2d 176 (Colo. 1987); People v. Vazquez, 768 P.2d 721 (Colo. App. 1988), cert. denied, 787 P.2d 174 (Colo. 1990); People v. Taylor, 804 P.2d 196 (Colo. App. 1990); People v. Fasy, 813 P.2d 797 (Colo. App. 1991); Campbell v. People, 814 P.2d 1 (Colo. 1991); Cherry Creek Sch. Dist. v. Voelker, 859 P.2d 805 (Colo. 1993). Only if a trial court abuses its discretion in excluding evidence, and such exclusion affects a party's substantial rights, will such exclusion provide the basis for a reversal of the court's judgment. Exclusion of evidence affects a substantial right of a party only it can be said with fair assurance that the error influenced the outcome of the case or impaired the basic fairness of the trial itself. Williams v. Cont'l Airlines, Inc., 943 P.2d 10 (Colo. App. 1996). In exercising such discretion, a trial court must consider the probative value of the proposed evidence, the nature of the offered evidence, and the other evidence admitted during trial. Williams v. Cont'l Airlines, Inc., 943 P.2d 10 (Colo. App. 1996). Photographs are not rendered inadmissible merely because they reveal shocking details of a crime. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981). For evidence of experiment to be admissible it must aid rather than confuse the jury in its resolution of the issues, and it must tend directly to establish or disprove a material issue in the case. People v. McCombs, 629 P.2d 1088 (Colo. App. 1981). Trial court properly excluded evidence when it determined that the excluded testimony could confuse the issues, mislead the jury, and open the door to cross-examination concerning collateral issues. People v. Watkins, 83 P.3d 1182 (Colo. App. 2003). The admission or exclusion of evidence of an experiment rests largely in the discretion of the trial court. An experiment is not rendered inadmissible solely because it is based on a disputed reconstruction of the crime. People v. Agado, 964 P.2d 565 (Colo. App. 1998). Witness may be required to demonstrate trigger pull on gun before jury if the probative value of such evidence outweighs any prejudicial effect. Any prejudice flowing from defendant's demonstration of trigger pull was ameliorated by his explanation at trial and the cast on his hand that was visible to the jury. People v. Agado, 964 P.2d 565 (Colo. App. 1998). Evidence of routine practice. The trial court has the discretion to exclude evidence of a routine practice if its probative value is substantially outweighed by the danger of unfair prejudice. Bloskas v. Murray, 646 P.2d 907 (Colo. 1982). The trial court is vested with broad discretion in determining relevancy. Melton By and Through Melton v. Larrabee, 832 P.2d 1069 (Colo. App. 1992). The testimony of a severely injured plaintiff and his guardian in a declaratory judgment action to determine the issue of coverage under an insurance policy would be prejudicial to the defendant and would constitute an effort to evoke sympathy. Accordingly, the trial court was well within its discretion in finding such testimony of minimal probative value with respect to the issues involved in the case. Williams v. Chrysler Ins. Co., 928 P.2d 1375 (Colo. App. 1996). Trial court erred in excluding expert testimony as to heat of fire where it was directly related to determining plaintiff's pain and suffering damages as a result of the accident. McKown-Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev'd in part on other grounds, 801 P.2d 536 (Colo. 1990). Evidence that defendant left restaurant upon seeing witness was not irrelevant or prejudicial. People v. Trujillo, 686 P.2d 1364 (Colo. App. 1984). Evidence of a defendant's flight may be relevant to show consciousness of guilt but only if it can be shown the defendant was aware he or she was being sought. People v. Perry, 68 P.3d 472 (Colo. App. 2002). Prejudice of prior criminality outweighed by probative value. Defendant's activities at a halfway house were probative of his guilt or innocence despite the prejudicial aspects of his residence at the halfway house. People v. Clark, 705 P.2d 1017 (Colo. App. 1985). The probative value of Pennsylvania sexual assault was not outweighed by the danger of unfair prejudice. It had legitimate probative force since the Pennsylvania sexual assault was similar in important respects to the charged offense. People v. Everett, 250 P.3d 649 (Colo. App. 2010). Evidence of plaintiff's status as an undocumented immigrant was clearly relevant to the issue of damages for lost future earnings, but the admissibility of such evidence would depend on whether plaintiff had violated the immigration laws or an employment-related rule and was unlikely to remain in the United States during the period of lost future wages. Silva v. Wilcox, 223 P.3d 127 (Colo. App. 2009). Since stipulation by defendant would carry same probative weight as that of proffered evidence, its only remaining effect was to present irrelevant and prejudicial evidence. In this instance, its admission was harmless error. Martin v. People, 738 P.2d 789 (Colo. 1987). Trial court may require the acceptance of a stipulation of fact made by the defendant if the people's case is not weakened by such stipulation and if the probative value of the offered evidence is substantially outweighed by the danger of unfair prejudice. People v. McGregor, 757 P.2d 1082 (Colo. App. 1987). Trial court did not abuse its discretion in admitting community corrections tracking records even though defendant's proffered stipulation carried equal probative force. The court acted to remove any unfair prejudice by requiring the prosecution to avoid any inference that defendant was in custody. People v. St. James, 75 P.3d 1122 (Colo. App. 2002). Probative value of conditions of release recommended by disposition committee of state hospital was not substantially outweighed by unfair prejudice, confusion of issues, or misleading jury, or any of the other factors in this rule. Vialpando v. People, 727 P.2d 1090 (Colo. 1986). Because defendant was willing to stipulate to the mental state element of the offense which the prosecution was required to prove, there was no material fact in dispute and the probative value of introducing evidence of defendant's prior misdemeanor conviction resulting from an altercation would be minimal weighed against the danger of unfair prejudice. People v. Silva, 987 P.2d 909 (Colo. App. 1999). 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 safety code or regulation in effect at the time of alleged negligence may be admissible in some circumstances, however, codes and regulations enacted after alleged negligence may result from research conducted, information obtained, impracticalities eliminated or mitigated, or even a consensus formed, after the alleged negligence; therefore, such codes and regulations do not ordinarily give a similar indication of the duty of care years before their enactment. Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo. App. 1998). Where evidence presented at trial did not support plaintiff's offer of proof that compliance with a regulation enacted after the alleged negligence occurred would have led to the discovery of a leak before an explosion, evidence concerning the regulation was not admissible to establish the standard of care prior to the enactment of the regulation. Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo. App. 1998). Cumulative evidence. The admission or rejection of cumulative evidence is within the trial court's discretion and its ruling will not be overturned unless an abuse of discretion clearly appears. People v. Unrein, 677 P.2d 951 (Colo. App. 1983). Cumulative evidence may be excluded by the trial court. Danburg v. Realties, Inc., 677 P.2d 439 (Colo. App. 1984); People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992); People v. Salas, 902 P.2d 398 (Colo. App. 1994). There was no threat of a needless presentation of cumulative evidence where testimony was the only evidence presented as to heat of the fire which was directly related to determining plaintiff's pain and suffering damages as a result of the accident. McKown-Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev'd in part on other grounds, 801 P.2d 536 (Colo. 1990). Where evidence to which defendant objected consisted of previous testimony that had already been admitted at trial and no one else had the information that the witness possessed, except defendant, the evidence itself was not cumulative. People v. Balkey, 53 P.3d 788 (Colo. App. 2002). Since the testimony had already been once received, its repetition to the jury during its deliberations was not "needless" within the meaning of the rule. People v. Balkey, 53 P.3d 788 (Colo. App. 2002). It was not an abuse of discretion for the trial court to exclude written reports of the property's fair market value where two experts were examined at trial concerning their opinion of the property's fair market value, the factors they considered, and the methods they employed and the reports merely reiterated their testimony. Nat'l Canada Corp. v. Dikeou, 868 P.2d 1131 (Colo. App. 1993). It was not an abuse of discretion for the trial court to exclude victim's inconsistent statements concerning use of marijuana prior to assault where such evidence would have been cumulative of other testimony impeaching the victim and such evidence was potentially prejudicial to both parties. People v. Delgado, 890 P.2d 141 (Colo. App. 1994). Testimony of several prosecution witnesses providing similar testimony did not undermine the fairness of the trial or cast serious doubt on the reliability of the verdict where the trial court instructed jurors that they were to determine the weight and credit to be given to the victims' out-of-court statements and that the number of witnesses testifying on a particular issue was irrelevant in weighing the strength of the evidence. People v. Burgess, 946 P.2d 565 (Colo. App. 1997). The test to apply in determining whether an accused may offer evidence that another committed the crime for which the defendant is being tried is that the defendant must first offer proof directly connecting the third person with the crime before evidence of that person's opportunity or motive to commit the crime becomes admissible. People v. Mulligan, 193 Colo. 509, 568 P.2d 449 (1977); People v. Schwartz, 678 P.2d 1000 (Colo. 1984). In the context of child abuse prosecution, the fact that the victim was in custody of the third person during the time when the injury could have been inflicted is sufficient direct and circumstantial evidence to satisfy the test. People v. Schwartz, 678 P.2d 1000 (Colo. 1984). If a prior act indicates no aspect of intent that cannot be discerned from the act in the crime charged, there is no valid purpose for admission of the prior act evidence to prove intent, and its probative value is outweighed by its prejudicial effect. People v. Hansen, 708 P.2d 468 (Colo. App. 1985). Evidence of refusal to take a blood or breath test is admissible in evidence at a revocation of license proceeding or at a trial for driving under the influence or while ability impaired, and the effect of § 42-4-1202(3)(e) is to allow admission of such evidence in every case without a determination of relevance on a case-by-case basis. Cox v. People, 735 P.2d 153 (Colo. 1987). Probative value of battered woman opinion evidence was not outweighed by unfair prejudicial effect. The opinion evidence admitted was relevant to the issue of the victim's credibility, and the expert did not testify regarding the specific relationship between the defendant and the victim. People v. Johnson, 74 P.3d 349 (Colo. App. 2002). Evidence of incest victim psychology held admissible and probative value not outweighed by prejudicial effect. People v. Koon, 724 P.2d 1367 (Colo. App. 1986). Evidence protected by the rape shield statute (§ 18-3-407 ) falls under a presumption that a victim's or witness' sexual conduct is irrelevant unless the proponent of the evidence shows that it is relevant to a material issue in the case. People v. Melillo, 25 P.3d 769 (Colo. 2001). 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). A trial court may consider the policy concerns underlying the rape shield statute when weighing the relevance of evidence of a victim's or witness' sexual conduct against its potentially prejudicial effect. People v. Melillo, 25 P.3d 769 (Colo. 2001). Trial court did not abuse its discretion by admitting into evidence tape recorded conversation involving father accused of incest against his son, the boy, and the boy's mother where the question of whether either the mother's or father's influence over the child may have accounted for the child's vacillations and recantations in making the allegations was a central issue. People v. Gibbens, 905 P.2d 604 (Colo. 1995). Court did not abuse its discretion in admitting evidence of defendant's other sex assaults. The evidence was relevant to show defendant's intent and motive. People v. Orozco, 210 P.3d 472 (Colo. App. 2009). Evidence of consensual sexual contact with one other than the victim, which took place in the same place and at about the same time as alleged sexual assault on child, held relevant and not unduly prejudicial. People v. Tauer, 847 P.2d 259 (Colo. App. 1993). Probative value of evidence in sexual assault case did not substantially outweigh danger of unfair prejudice where evidence consisted of defendant's statements that "Mexicans were bred for sex" and Spanish-English dictionaries containing underlined words of a sexual and reproductive nature. People v. Braley, 879 P.2d 410 (Colo. 1993). Admitting evidence of victim's rape fantasy and evidence of defendant and victim's prior sexual relationship not unfairly prejudicial. The probative value of the evidence outweighs the prejudice the victim may suffer as a result. People v. Garcia, 179 P.3d 250 (Colo. App. 2007). Prejudice of threat outweighed by probative value. A letter from defendant to a fellow prisoner, containing an admission of a fact relevant to proof of his guilt of the crime charged and containing a threat against the fellow prisoner, is admissible to show a consciousness of guilt despite the prejudicial aspects of the included threat. People v. Lowe, 660 P.2d 1261 (Colo. 1983). Defendant's statement to polygraph examiner was admissible because it was relevant to ultimate issue in case and prejudicial impact was minimal. People v. Robinson, 713 P.2d 1333 (Colo. App. 1985). The admission of cumulative hearsay statements of child victim of sexual assault proper where truthfulness of child victim was at issue and statements were, therefore, relevant to material issues in the case. People v. Morrison, 985 P.2d 1 (Colo. App. 1999), aff'd on other grounds, 19 P.3d 675 (Colo. 2000). Trial court erred in precluding defendant from inquiring into, and if necessary, presenting evidence of, a romantic relationship between alleged victim and a friend. Evidence of alleged victim's romantic and sexual relationship with friend was relevant to a material issue in the case, namely, victim's motive to lie. Trial court's exclusion of the motive evidence infringed upon defendant's constitutional right to confront witnesses. People v. Owens, 183 P.3d 568 (Colo. App. 2007). The probative value of a prior conversation between the victim and the defendant in the same setting as the alleged assault is not substantially outweighed by any danger of unfair prejudice that may result from the admission of the conversation, which is, arguably, not even evidence of defendant's bad character. People v. Gardner, 919 P.2d 850 (Colo. App. 1995). Damage to defendant's case not grounds for exclusion. The trial court should not exclude proffered evidence as unfairly prejudicial simply because it damages the defendant's case. All effective evidence is prejudicial in the sense of being damaging or detrimental to the party against whom it is offered. People v. District Court, 785 P.2d 141 (Colo. 1990). Where the evidence is admissible under § 13-25-129 , defendant must show some basis for refusing the evidence beyond conclusory statements that the evidence was prejudicial and cumulative. People v. Fasy, 813 P.2d 797 (Colo. App. 1991). Only prejudice which suggests a decision made on an improper basis, such as the jury's bias, sympathy, anger, or shock, requires the exclusion of evidence under this rule. Evidence should not be excluded simply because it damages the defendant's case. People v. Salas, 902 P.2d 398 (Colo. App. 1994). The danger of prejudice presented by the evidence of the defendant's gang membership did not outweigh its probative value where the evidence was not offered to prove that the defendant was more likely to kill because he was a gang member; rather it was offered to show that, because of his membership in a particular gang, defendant was more likely to murder this particular victim after deliberation. People v. Mendoza, 860 P.2d 1370 (Colo. App. 1993). The prejudice to the defendant, if any, because of the prosecutor's statements during closing arguments that the "Bloods and Crips do not get along peaceably" was not so substantial as to warrant a mistrial where the nature of the relationship between the two gangs was germane to the prosecutor's theory of the case and sufficient evidence illustrating the relationship had been introduced at trial to support the prosecutor's statements. People v. Mendoza, 860 P.2d 1370 (Colo. App. 1993). Prejudicial proffered evidence outweighed by probative value. Proffered evidence which calls for exclusion as unfairly prejudicial is given a more specialized meaning of an undue tendency to suggest a decision on an improper basis, commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution or horror. People v. District Court, 785 P.2d 141 (Colo. 1990); Holley v. Huang, __ P.3d __ (Colo. App. 2011). The fact that a witness is a member of a gang which is loyal to the defendant's gang is probative of bias and is admissible so long as it does not unduly prejudice the defendant. People v. Trujillo, 749 P.2d 441 (Colo. App. 1987). The fact that the defendant's expert witness had a "substantial connection" with the defendant's insurer is probative of bias, and admission of evidence of such connection was within the trial court's discretion. Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000). 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). 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). The trial court did not abuse its discretion in admitting into evidence portions of a videotaped statement defendant made to the police in which he denied an accusation that he told others that he intended to kill the victim and acknowledged that he had had three prior lovers who had died and that the victim was aware of that, where there was substantial evidence that the defendant had manifested an intent to kill the victim, the defendant made no admission of guilt regarding the deaths of his former lovers, the comments were not mentioned or highlighted by either the court or the prosecution, and no reference was made to them during the examination of witnesses or during the prosecution's opening or closing statements. People v. Seigler, 832 P.2d 980 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993). Trial court did not abuse discretion in not admitting "other acts" evidence when admission of evidence would have consumed a great deal of trial time and would have had slight probative value. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994). Where a witness was temporarily unable to testify in court and the probative value of her relevant testimony was reduced by the delay in time between the witness's observations and the criminal act, the discrepancies between the witness's and victim's descriptions of the vehicle involved, and the witness's admission that she could not see clearly because she was not wearing her glasses, the trial court did not abuse its discretion in ruling that the minimal probative value of the witness's testimony was outweighed by the delay of a continuance or relocation of the trial to the witness's home. People v. Webster, 987 P.2d 836 (Colo. App. 1998). No abuse of discretion in admitting evidence of defendant's deferred judgment for burglary. People v. Nuanez, 973 P.2d 1260 (Colo. 1999). Evidence of defendant's prior domestic violence conviction was properly admitted. The conviction was relevant for impeachment purposes and was not prejudicial since it was a single, isolated, brief statement that was not a significant part of the prosecution's cross-examination or closing argument. People v. Sommers, 200 P.3d 1089 (Colo. App. 2008). No abuse of discretion in admitting police officers' testimony about prior contact with defendant and defendant's area restriction. Testimony was part of the res gestae of the offense because it gave the jury an understanding of why defendant was stopped and thus formed a natural and integral part of an account of the crime. Likewise, testimony about an outstanding misdemeanor arrest warrant was relevant because it described the chain of events preceding defendant's arrest and explained why he was taken into custody. The officers did not testify about the nature of the prior contact or the nature of the area restriction; thus, this testimony was neither unduly inflammatory nor likely to prevent the jury from making a rational decision. Although this testimony may have been damaging to defendant, it did not amount to unfair prejudice. People v. Asberry, 172 P.3d 927 (Colo. App. 2007). 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). No abuse of discretion for admitting false identification evidence when court found false ID card was relevant to issues of defendant's flight, consciousness of guilt, fluency in English, and expertise with law enforcement. People v. Al-Yousif, 206 P.3d 824 (Colo. App. 2006). Evidence impugning moral character excluded. Evidence excluded as violating standard principles of evidence by needlessly impugning moral character. People v. Loscutoff, 661 P.2d 274 (Colo. 1983). The trial court has broad discretion to preclude inquiries that have no probative force or are irrelevant or have little bearing on the witness's credibility but would substantially impugn his character. People v. Bustos, 725 P.2d 1174 (Colo. App. 1986). Evidence regarding defendant's gang affiliation properly admitted. Defendant's gang affiliation could have shown a motive to commit the crime. People v. Moya, 899 P.2d 212 (Colo. App. 1994). Evidence of a defendant's gang involvement was limited to testimony of his statement to police that he had been involved in gang activities and that statement was offered in support of the prosecution's theory that the shooting was motivated by gang rivalry, therefore the trial court did not abuse its discretion in ruling that the testimony was not unfairly prejudicial. People v. Webster, 987 P.2d 836 (Colo. App. 1998). Evidence of defendant's jealousy and accusatory behavior was admissible as res gestae evidence because challenged testimony was part and parcel of the criminal episode for which defendant was charged. Trial court did not abuse its discretion by denying defendant's motion for a mistrial. People v. Jaramillo, 183 P.3d 665 (Colo. App. 2008). Evidence of threats against a witness properly admitted. The evidence could show consciousness of guilt and, by inference, that the defendant committed the crime charged. People v. Eggert, 923 P.2d 230 (Colo. App. 1995). Evidence of a witness's fear of retaliation is admissible to explain the witness's change in statement or reluctance to testify. People v. Villalobos, 159 P.3d 624 (Colo. App. 2006). 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). Statement of defendant that her multiple personality disorder had been cured by the time of the murder properly admitted. Statement had probative value, given the prosecution's theory that defendant had covered up her involvement in the crime, and defendant's description of her mental state at the time of the offense made it more probable that she had intentionally caused the death of the victim. People v. Hall, 60 P.3d 728 (Colo. App. 2002). 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 defendant had dominion and control over the apartment. People v. Chavez, 190 P.3d 760 (Colo. App. 2007). Defendant's nonresponsiveness 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). Video animation was properly admitted in shaken baby syndrome prosecution because it related to expert's opinion regarding the manner in which shaken baby syndrome injuries occur and it was included because trial court specifically rejected defendant's claim that the video was extremely violent and therefore unfairly prejudicial. People v. Cauley, 32 P.3d 602 (Colo. App. 2001). Evidence concerning possible penalties faced by witness for his part in burglary excluded. Court did not err in excluding evidence concerning possible penalties faced by informer which defendant argued was relevant to show informer had motive to shift blame for crime to defendant. People v. Pinkey, 761 P.2d 228 (Colo. App. 1988). Documents excluded as irrelevant. People v. Walker, 666 P.2d 113 (Colo. 1983). Expert testimony permitted. People v. Gordon, 738 P.2d 404 (Colo. App. 1987). Propounding questions with no reasonable basis in fact for the interrogation. Defense counsel may not properly propound to a witness questions which can cause a doubt in the jury's mind as to the witness' credibility when there is no reasonable basis in fact for that interrogation. Under this rule and § 18-3-407 , the defendant held not to have established entitlement to elicit the name of the male whom the child sexual assault victim allegedly had intercourse with days before the date of the sexual assault. People v. Vialpando, 804 P.2d 219 (Colo. App. 1990). Polygraph evidence inadmissable. If the defendant's statements made to the polygraph technician are edited to remove all reference to the polygraph examination, they will not be characterized by the unfair prejudice required to make evidence excludable. People v. District Court, 785 P.2d 141 (Colo. 1990). Evidence of a defendant's offer or willingness to take a polygraph examination is per se inadmissible as evidence of consciousness of innocence. People v. Muniz, 190 P.3d 774 (Colo. App. 2008). In determining the admissibility of expert testimony on the reliability of eyewitness testimony, the court should issue written findings of fact applying both the helpfulness standard of C.R.E. 702 and the discretion granted under this rule. Campbell v. People, 814 P.2d 1 (Colo. 1991). Trial court erred in excluding expert testimony on reliability of eyewitness identification where eyewitness identification of defendant was the only substantial element of the prosecution's case, eyewitnesses expressed high confidence in their identification of defendant, and proffered expert testimony would have shown a poor relationship between the confidence of eyewitnesses, in general, and the reliability of such witnesses' testimony. People v. Campbell, 847 P.2d 228 (Colo. App. 1992). Trial court properly excluded expert testimony. The study was not conducted in conformance with any standard or procedure that would ensure its reliability. As well, there was no evidence the participants were a representative sampling that would yield reliable statistical analysis. People v. Hogan, 114 P.3d 42 (Colo. App. 2004). Although admission of DNA evidence was the subject of conflicting testimony, where there was expert testimony to support the court's ruling, it was within the trial court's discretion to allow admission of the evidence. People v. Lindsey, 868 P.2d 1085 (Colo. App. 1993). Admission of DNA evidence derived from multiplex DNA testing systems that met the standard for admission of scientific evidence under C.R.E. 702 was proper under this rule. People v. Shreck, 22 P.3d 68 (Colo. 2001). Trial court did not abuse its discretion in admitting photographs taken at the autopsy. People v. Moya, 899 P.2d 212 (Colo. App. 1994). If a contract is deemed ambiguous, court may admit extrinsic or parol evidence to assist in ascertaining intent of parties. Cheyenne Mountain Sch. D. v. Thompson, 861 P.2d 711 (Colo. 1993). Three-part test under equivalent federal rule applied in People v. Campbell, 847 P.2d 228 (Colo. App. 1992). Statements that were not unduly inflammatory nor likely to prevent jury from making a rational decision will not be found unduly prejudicial. People v. Quintana, 882 P.2d 1366 (Colo. 1994). Testimony that detective recognized the defendant on a surveillance videotape was not so unfairly prejudicial as to mandate its exclusion. People v. Robinson, 908 P.2d 1152 (Colo. App. 1995), aff'd on other grounds, 927 P.2d 381 (Colo. 1996). Introduction of dog-tracking evidence proper where testimony of dog handler establishes sufficient foundation and there is corroborating evidence of defendant's guilt. People v. Brooks, 950 P.2d 649 (Colo. App. 1997), aff'd, 975 P.2d 1105 (Colo. 1999). Elements of a proper foundation for dog tracking evidence listed in Brooks v. People, 975 P.2d 1105 (Colo. 1999). Prosecutor's use of expert testimony regarding drug courier profiles as substantive evidence of defendant's guilt was improper, and, although a reasonable jury could have convicted on other evidence, the admissible evidence did not overwhelmingly establish defendant's guilt, and there is a significant probability that the erroneously admitted testimony substantially influenced the jury's verdict, and thus was not harmless. Salcedo v. People, 999 P.2d 833 (Colo. 2000). Court did not err in admitting drug courier profile testimony from police officer because it was testimony regarding how illegal drugs were transported, not specific personal characteristics of drug couriers themselves. The testimony aided the jury's understanding of an activity with which they were not likely to be familiar. People v. Montalvo-Lopez, 215 P.3d 1139 (Colo. App. 2008). In eminent domain proceeding, commission did not abuse its discretion in admitting evidence regarding city's opposition to landowner's planned unit development (PUD) application for limited purposes. Commission did not abuse its discretion in admitting evidence of city's involvement as background on the issuance of the application, the steps necessary to obtain it, and the timeliness of the process. Moreover, the commission minimized any prejudicial effects of such evidence by excluding testimony regarding city's motives in opposing PUD application. City of Englewood v. Denver Waste Transfer, L.L.C., 55 P.3d 191 (Colo. App. 2002). Because expert testifying in shaken-impact syndrome case never purported to know what minimum force would be required to cause a subdural hematoma and because testimony was properly qualified by other statements of the same expert, a single improper inference by prosecution referring to "the force it takes to make a baby's brain bleed" in opening statement of prosecution was not sufficient to render the trial fundamentally unfair and, therefore, did not rise to the level of plain error. People v. Dunaway, 88 P.3d 619 (Colo. 2004). Trial court did not abuse discretion by allowing expert testimony to show the basis of the physician's opinion when it was undisputed that massive, violent force causes subdural hematoma and when physician's testimony related to situations that involve massive, violent force to help the jury understand the facts of the shaken-impact syndrome case before it. People v. Martinez, 74 P.3d 316 (Colo. 2003). Trial court did not abuse discretion by declining to conduct an in camera review of records of the investigation of detective's alleged moonlighting during on-duty hours to determine whether defendant could use such records to impeach the detective's credibility or allow the defense to admit other evidence of the moonlighting investigation. People v. Knight, 167 P.3d 141 (Colo. App. 2006). When a witness describes an item of real evidence, testimony as to its description and out-of-court identification may be admitted. People v. Hogan, 114 P.3d 42 (Colo. App. 2004). Court may properly allow testimony concerning defendant's pre-advisement silence without causing prejudice if defendant testified and the evidence of defendant's pre-advisement silence was elicited in the cross-examination of defendant for credibility purposes. People v. Taylor, 159 P.3d 730 (Colo. App. 2006). Identification of inanimate object is not a crucial element of proof, therefore, the same constitutional protections for identifying suspects do not apply to procedures used in identifying inanimate objects. As a result, any inadequacy in the procedure followed and the failure to use other procedures reasonably available are arguments that can be made to the jury. People v. Hogan, 114 P.3d 42 (Colo. App. 2004). "Were they lying?" type questions are categorically improper. Witnesses are prohibited from commenting on the veracity of another witness, because such opinions are prejudicial, argumentative, and ultimately invade the province of the fact-finder. Such concerns outweigh any potential or supposed probative value elicited by the question. Liggett v. People, 135 P.3d 725 (Colo. 2006). Evidence of an alias is admissible when it is relevant to an issue of identification or an attempt to avoid detection. In this case, the alias evidence was relevant to the issue of identification, ownership of the car, and, inferentially, the possession of the marihuana. Since its legitimate probative value outweighed the danger of unfair prejudice, the alias evidence was properly admitted. People v. Valencia, 169 P.3d 212 (Colo. App. 2007). Defense counsel may open the door to the admission of evidence through questions concerning the method of interrogation by detectives and the motives of witnesses to change their testimony by raising those issues in an opening statement. People v. Davis, __ P.3d __ (Colo. App. 2010). Evidence of past cocaine use not admissible in medical malpractice case. Trial court abused its discretion in admitting highly prejudicial and confusing evidence of plaintiff's past cocaine use. There was no evidence of cocaine use around the time of the alleged malpractice and danger of unfair prejudice substantially outweighed any probative value. Haralampopoulos v. Kelly, __ P.3d __ (Colo. App. 2011). Applied in People v. Cole, 654 P.2d 830 (Colo. 1982); People v. Perez, 656 P.2d 44 (Colo. App. 1982); People v. McGhee, 677 P.2d 419 (Colo. App. 1983); People v. Hogan, 703 P.2d 634 (Colo. App. 1985); People v. Randall, 711 P.2d 689 (Colo. 1985); I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882 (Colo. 1986); People v. Wafai, 713 P.2d 1354 (Colo. App. 1985), aff'd, 750 P.2d 37 (Colo. 1988); Lamont v. Union Pacific R.R.Co., 714 P.2d 1341 (Colo. App. 1986); Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo. 1986); People v. Auldridge, 724 P.2d 87 (Colo. App. 1986); People v. Alexander, 724 P.2d 1304 (Colo. 1986); People v. Abeyta, 728 P.2d 327 (Colo. App. 1986); People v. Collins, 730 P.2d 293 (Colo. 1986); People v. Turner, 730 P.2d 333 (Colo. App. 1986); People v. Montgomery, 743 P.2d 439 (Colo. App. 1987); People v. Huckleberry, 768 P.2d 1235 (Colo. App. 1989); People v. Franklin, 782 P.2d 1202 (Colo. App. 1989); People v. Martin, 791 P.2d 1159 (Colo. App. 1989); Koehn v. R.D. Werner Co., Inc., 809 P.2d 1045 (Colo. App. 1990); Martin v. Principal Cas. Ins. Co., 835 P.2d 505 (Colo. App. 1991), rev'd sub nom Budget Rent-A-Car Corp. v. Martin, 855 P.2d 1377 (Colo. 1993); 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); George v. Welch, 997 P.2d 1248 (Colo. App. 1999), rev'd on other grounds, 19 P.3d 675 (Colo. 2000); People v. Ellsworth, 15 P.3d 1111 (Colo. App. 2000); People v. Hogan, 114 P.3d 42 (Colo. App. 2004); People v. Gonzales-Quevedo, 203 P.3d 609 (Colo. App. 2008).