The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.
(Federal Rule Identical.)
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, "Impeachment", see 22 Colo. Law. 1207 (1993). For article, "C.R.E. 608(b): Challenging Witness Credibility", see 29 Colo. Law. 99 (July 2000). For article, "Admissibility of Testimony Concerning the Truthfulness or Untruthfulness of a Witness", see 35 Colo. Law. 37 (December 2006). Common-law rule. Prior to the adoption of the Colorado rules of evidence, Colorado adhered to the general rule that evidence of misdeeds was inadmissible for the purpose of attacking a witness' character in regard to his truthfulness. People v. Saldana, 670 P.2d 14 (Colo. App. 1983). While this rule allows for extrinsic evidence under certain circumstances, the adoption of this rule has not materially altered the previously established general rule. People v. Saldana, 670 P.2d 14 (Colo. App. 1983). Right to confront and cross-examine witnesses not absolute. An accused's constitutional right to confront and to cross-examine witnesses is not absolute and may be limited to accommodate other legitimate interests in the criminal trial process. People v. Cole, 654 P.2d 830 (Colo. 1982). Trial court properly limited cross-examination where answers sought by defendant involved cumulative or collateral testimony concerning co-defendant's credibility and were only marginally related to commission of charged crime. People v. Ray, 109 P.3d 996 (Colo. App. 2004). Bias on the part of a witness is a state of mind and only those demands which can influence the mind at the moment of testifying are relevant to a demonstration of bias. People v. Simmons, 182 Colo. 350, 513 P.2d 193 (1973). Impeachment inquiry directed to witness' credibility, not character. In impeaching a witness, the inquiry ought to be directed to the witness' credibility rather than to his moral character. People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972). Rule applies only to the admissibility of character evidence. Proffered evidence of whether a witness was testifying truthfully in the case did not constitute a general character attack on witness. People v. Hall, 107 P.3d 1073 (Colo. App. 2004). Cross-examination held to be proper attack upon witness's credibility, not his character. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972). The exclusion of proper opinion testimony is harmless where the defense can fully cross-examine the witness whose credibility was to be impeached, and where that witness's credibility was otherwise impeached through the testifying witness. People v. Davis, __ P.3d __ (Colo. App. 2010). Defendant who takes witness stand is subject to same tests of credibility as any other witness. People v. Neal, 181 Colo. 341, 509 P.2d 598 (1973). Defendant may be examined on previous felony convictions. A defendant who elects to be a witness in his own behalf in a criminal case subjects his credibility to question, like any other witness, and he may therefore be examined on the matter of previous felony convictions. People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973). Nature of particular crime for which defendant was convicted. Although evidence of prior felony convictions is admissible to impeach a defendant who voluntarily takes the stand and testifies in his own behalf, such an inquiry is not confined to the mere fact of the conviction of some crime, but the nature or name of the particular crime of which the witness was convicted may be brought out. Mays v. People, 177 Colo. 92, 493 P.2d 4 (1972). Where defendant testifies, motion to suppress prior conviction denied. The denial of the defendant's motion to suppress his prior felony conviction is proper where the defendant takes the witness stand to testify. People v. Neal, 181 Colo. 341, 509 P.2d 598 (1973). Where, before the defendant testifies in his defense, he moves that the court prohibit the prosecution from showing on cross-examination that he has been previously convicted of a felony, the court correctly denies the motion to suppress as it is without discretion to prohibit such evidence. People v. Bueno, 183 Colo. 304, 516 P.2d 434 (1973). Defendant's past crimes may be used to discredit defendant's witness. Where a defendant places a psychiatrist on the stand to testify that the defendant is a person unlikely to commit the crime in question, it is not error to permit the district attorney, in an effort to discredit this testimony, to refer to the defendant's past criminal behavior in an effort to discredit the psychiatrist's testimony during cross-examination of the psychiatrist. People v. Pacheco, 180 Colo. 39, 502 P.2d 70 (1972). Prosecutor must ask impeachment questions in good faith. The prosecutor may in cross-examination ask the witness if he has been convicted of a felony, but he must ask the question in good faith. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973). Judge to determine good faith. When prosecutors are about to impeach witnesses by reason of former felonies, they should advise the judge on what background they will propound questions, and the judge must determine, within his discretion, whether good faith is present. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973). Where defendant denies prior felony convictions, counsel to make offer of proof. The only way that counsel can establish good faith in asking questions about prior felonies if the defendant denies any prior felony convictions is to make an offer of proof to the court. People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973). Proof not necessary where defendant admits prior convictions. When a defendant exercises his statutory privilege of testifying, all prior felony convictions and their nature may be shown to impeach his testimony, and where a defendant admits any prior convictions, proof thereof is not necessary. Candelaria v. People, 177 Colo. 136, 493 P.2d 355 (1972). Felony inquiry reversible error where prosecution knows there are no prior convictions. Asking the defendant, who has taken the stand in his own defense, whether he has ever been arrested for a felony when the district attorney knows that there is no prior felony conviction is reversible error. People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973). Use of void prior convictions need not require reversal. The error implicit in the use of void prior convictions for impeachment purposes need not necessarily require reversal, particularly where the error is found to be harmless beyond a reasonable doubt. People v. Neal, 187 Colo. 12, 528 P.2d 220 (1974). Limiting instruction required. When prior felony convictions are elicited during defendant's testimony, a limiting instruction is required. People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973). Drug abuse by witness excluded. Where testimony concerning alleged drug abuse by the witness was irrelevant, the trial court does not abuse its discretion in refusing to allow the questioning. People v. St. John, 668 P.2d 988 (Colo. App. 1983). Generally, witness cannot be impeached by acts of "bad character". Generally, impeachment of a witness' character is confined to showing former convictions of a felony, but not acts or occurrences which show "bad character". People v. Barker, 189 Colo. 148, 538 P.2d 109 (1975). It is improper to impeach a witness with convictions short of felonies, but absent a contemporaneous objection, this error is not reversible. People v. Ciari, 189 Colo. 325, 540 P.2d 1094 (1975). Impeachment of witnesses with questions concerning arrests is generally prohibited. People v. Ciari, 189 Colo. 325, 540 P.2d 1094 (1975); People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). Evidence of witness's plea agreements in prior, unrelated cases was properly excluded. People v. Fears, 962 P.2d 272 (Colo. App. 1997). Questions on arrests allowed on recross where arrest record put in evidence. Where on redirect examination, an attempt is made to restore a witness' credibility, and the defense counsel asks the witness if he has been in any further trouble since a misdemeanor conviction, and the witness responds that he has been in jail a few times, but that he had been mistakenly arrested for aggravated assault, the prosecutor on recross-examination is properly permitted to explore the arrest record of the witness. People v. Ciari, 189 Colo. 325, 540 P.2d 1094 (1975). Where hostility of witness not shown, restricted examination allowed. The court does not err in restricting examination of a police detective whom the defendant calls as his own witness, on the basis that the officer is a hostile witness, where no foundation is shown that the officer is in fact a hostile witness. People v. York, 189 Colo. 16, 537 P.2d 294 (1975). Witness giving a character opinion is not required to have long-term acquaintance with witness to be impeached. Honey v. People, 713 P.2d 1300 (Colo. 1986). Testimony which referred to a specific occasion of truthfulness and which did not express an opinion as to character may not be admitted under this rule. People v. Koon, 713 P.2d 410 (Colo. App. 1985); People v. Ross, 745 P.2d 277 (Colo. App. 1987). Such testimony constitutes reversible error and requires a new trial. People v. Oliver, 745 P.2d 222 (Colo. 1987). Evidence of prior misdemeanor convictions involving false statements to police held admissible for impeachment purposes where focus was on the specific instances of lying, not on the convictions themselves, and jury was instructed to consider the evidence only for the limited purpose of evaluating defendant's credibility. People v. Gillis, 883 P.2d 554 (Colo. App. 1994). Evidence of misdemeanor shoplifting is not admissible under section (b). Although shoplifting involves a form of dishonesty, a disregard of property rights of others is not probative of a propensity to be truthful or untruthful. People v. Jones, 971 P.2d 243 (Colo. App. 1998), overruled in People v. Segovia, 196 P.3d 1126 (Colo. 2008). Shoplifting is a specific instance of conduct that is probative of truthfulness pursuant to section (b). People v. Segovia, 196 P.3d 1126 (Colo. 2008) (overruling People v. Jones, 971 P.2d 243 (Colo. App. 1998)). Because theft generally is not probative of character for truthfulness, exclusion of evidence of theft by prosecution witness did not constitute abuse of discretion by trial court. People v. Knight, 167 P.3d 141 (Colo. App. 2006). Trial court did not abuse its discretion by excluding statements related to a 10-year-old felony shoplifting incident. Because of the remoteness of the incident and its dissimilarity with the case at hand, admission of the evidence would have caused undue delay, waste of time, and confusion and was properly excluded under C.R.E. 403. People v. Williams, 89 P.3d 492 (Colo. App. 2003). Rape trauma syndrome evidence generally inadmissible to determine whether an adult woman was in fact raped. However, in cases involving child incest victims, upon proper foundation, evidence of incest victim psychology may be admitted. People v. Koon, 724 P.2d 1367 (Colo. App. 1986); People v. Lucero, 724 P.2d 1374 (Colo. App. 1986). Expert's evaluation of victim inadmissible. Where the credibility of a child victim for truth and veracity has not been attacked, the admission of the testimony of a clinical psychologist, who has been appointed by the court for a competency evaluation of the victim, is error. People v. Ortega, 672 P.2d 215 (Colo. App. 1983). Where the credibility of a child victim for truth and veracity has not been attacked, the admission of the testimony of a social worker as to the truth and veracity of child victims in general is prejudicial error. People v. Snook, 729 P.2d 1026 (Colo. App. 1986), aff'd, 745 P.2d 647 (Colo. 1987). Pediatrician's statement concerning believability of child-victim statements violated this rule but was harmless error. People v. Gaffney, 769 P.2d 1081 (Colo. 1989). Social worker's lay statement concerning sincerity of child-victim's statements violated this rule because the statement constituted impermissible character testimony. However, admission of statement was not plain error. People v. Eppens, 979 P.2d 14 (Colo. 1999). Admission of the social worker's statement was not error where the child-victim herself testified and was vigorously cross-examined, the social worker testified as a lay witness, and the statement was corroborated by the testimony of the child-victim's examining physician. People v. Eppens, 979 P.2d 14 (Colo. 1999). Testimony by police officer that witnesses seemed sincere was improper. People v. Hall, 107 P.3d 1073 (Colo. App. 2004). Admission of investigating officer's testimony that victims were credible so undermined the fundamental fairness of the trial that serious doubt existed as to the reliability of the judgment of conviction, especially where there was an insufficient quantum and quality of other evidence and independent corroborating evidence of guilt. People v. Cook, 197 P.3d 269 (Colo. App. 2008). Evidence referencing victim's credibility is admissible when describing a technique used to interrogate a suspect and to explain the context in which a suspect's statements are made. People v. Lopez, 129 P.3d 1061 (Colo. App. 2005). 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). Where defendant attacks victim's credibility, testimony regarding victim's truthfulness is admissible. People v. Exline, 775 P.2d 48 (Colo. App. 1988), 985 F.2d 487 (10th Cir. 1993). Questioning of a defendant's credibility while on the witness stand does not necessarily constitute an attack on that defendant's character for truthfulness for purposes of introducing character evidence under the rule. Whether a witness's character is attacked will always depend on the circumstances of a particular case. People v. Miller, 890 P.2d 84 (Colo. 1995). The mere contradiction of the testimony of the defendant by another witness does not constitute an attack on the character of the defendant such that the defendant may introduce opinion evidence as to his truthful character. People v. Wheatley, 805 P.2d 1148 (Colo. App. 1990). Questions of witnesses whether they took seriously their oath to testify truthfully and if they were telling the truth, where such witnesses were not asked if other witnesses or parties were telling the truth, although of limited probative value, does not constitute improper bolstering and do not constitute plain error. People v. Lee, 989 P.2d 777 (Colo. App. 1999). Trial court erred in admitting into evidence the opinion of a social services intake worker that a child was being truthful in reporting the alleged sexual assault by the defendant on the occasion in question. People v. Eppens, 948 P.2d 20 (Colo. App. 1997), rev'd on other grounds, 979 P.2d 14 (Colo. 1999). No abuse of discretion or violation of defendant's confrontation right in trial court's decision to limit cross-examination. People v. Sweeney, 78 P.3d 1133 (Colo. App. 2003). Judge who presided over earlier proceedings may testify in rebuttal as to defendant's truthfulness. Where defendant testified to events leading to his arrest for taking children in violation of court order, the judge who presided over divorce could testify as rebuttal witness as to character of defendant for truthfulness. People v. Tippett, 733 P.2d 1183 (Colo. 1987). Unproven accusations, by themselves, do not raise an inference of improper actions. People v. Pratt, 759 P.2d 676 (Colo. 1988). Opinion and reputation evidence of character is admissible as long as the evidence refers only to character for truthfulness or untruthfulness and that element of witness' character has been attacked. People v. Woertman, 786 P.2d 443 (Colo. App. 1989); People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). A stipulation concerning allegations of unprofessional conduct of a physician does not constitute a finding of misconduct by the medical board. Therefore, court did not abuse its discretion in limiting cross-examination of doctor who conducted competency evaluation of criminal defendant. People v. Thomas, 962 P.2d 263 (Colo. App. 1997). Evidence of witness' general character was properly disallowed where the evidence was not limited to the witness' truthfulness and veracity. Wilkerson v. State, 830 P.2d 1121 (Colo. App. 1992). The advisement by the trial court of the defendant's right to testify was inadequate when the court failed to inform defendant that the decision to testify was personal to the defendant and failed to advise defendant as to the limited evidentiary use of any admission by the defendant. People v. Chavez, 832 P.2d 1026 (Colo. App. 1991), aff'd, 853 P.2d 1149 (Colo. 1993). Opinion testimony regarding a witness' truthfulness on a specific occasion rather than to the witness' general character for truthfulness is inadmissible. People v. Ayala, 919 P.2d 830 (Colo. App. 1995). "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). Trial court properly precluded cross-examination on crime of bigamy to impeach a witness' credibility in a criminal eavesdropping prosecution. The court determined that even if bigamy were an offense relating to truthfulness, the witness had been neither convicted, arrested, nor charged with such offense, and there was no evidence of an agreement by the prosecution not to file such charges against the witness in exchange for his testimony. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). Even if it were in the trial court's discretion to permit questioning of the witness as to the act of bigamy, it was also within the court's discretion to exclude the questioning as being more prejudicial than probative. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). Applied in People v. Sasson, 628 P.2d 120 (Colo. App. 1980); People v. Walker, 666 P.2d 113 (Colo. 1983); People v. Manners, 713 P.2d 1348 (Colo. App. 1985); Tevlin v. People, 715 P.2d 338 (Colo. 1986); People v. Jensen, 747 P.2d 1247 (Colo. 1987).