Colo. R. Evid. 803
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical.)
(Federal Rule Identical, Except that a Plea of Nolo Contendere was Excluded in the Federal rule.)
(Federal Rule Identical.)
CRE 803
Committee Comment to (1)
The change reflected above was based on the fact that neither immediacy nor spontaneity would be guaranteed by the Federal rule. Colorado case law requires that a present sense impression be instinctive and spontaneous in order to be admissible. See Denver City Tramway Co. v. Brumley, 51 Colo. 251, 116 P. 1051 (1911). It was felt that the requirements set forth in that opinion constitute a greater guarantee of trustworthiness than the Federal rule, i.e., spontaneity is the most important factor governing trustworthiness. This is especially true when there is no provision that the declarant be unavailable as a witness.
Committee Comment to (4)
See: Houser v. Eckhardt, 168 Colo. 226, 450 P.2d 664 (1969); Ingles v. People, 90 Colo. 51, 6 P.2d 455 (1931); and § 8-53-103(2)(a) & (b), C.R.S. (Workmen's Compensation Act of Colorado).
Committee Comment to (5)
The change reflected above was made because the Federal rule is more restrictive than the Colorado rule, which does not require absence of a present recollection to be expressly shown as a preliminary to use of recorded recollection. Jordan v. People, 151 Colo. 133, 376 P.2d 699 (1962).
Committee Comment to (6)
The rule makes no reference to any objective standard of trustworthiness, e.g., regularity with which records are kept. See Colorado cases: Patterson v. Pitoniak, 173 Colo. 454, 480 P.2d 579 (1971); Moseley v. Smith, 170 Colo. 177, 460 P.2d 222 (1969); Seib v. Standley, 164 Colo. 394, 435 P.2d 395 (1967); Rocky Mountain Beverage v. Walter Brewing Company, 107 Colo. 63, 108 P.2d 885 (1941); Hobbs v. Breen, 74 Colo. 277, 220 P. 997 (1923); Powell v. Brady, 30 Colo. App. 406, 496 P.2d 328 (1972).
Committee Comment to (9)
This rule is somewhat broader than the provisions of § 25-2-117 , C.R.S., and respecting marriage records is desirable because the evidentiary use of the book of marriages provided in § 90-1-20 , C.R.S. 1963, was repealed in 1973.
Committee Comment to (10)
The Committee recommended adoption of this amended version of C.R.E. 803(10) to follow the identical amendment to F.R.E. 803(10) which took effect on December 1, 2013.
Committee Comment to (13)
The age of the record or regularity of keeping are immaterial to admissibility. The content of fact is not limited to pedigree or genealogy.
Committee Comment to (14)
The generic term "property" used in the Federal rule indicates an intent that the rule apply to documents relating to interests in both real property and personal property. The term "filed" has been added to render the rule applicable to personal property under Colorado law: the Uniform Commercial Code, the Colorado Rules of Civil Procedure, and § 30-10-103 , C.R.S., all refer to "filing" documents affecting an interest in personal property.
Committee Comment to (15)
The rule extends admissibility beyond case law and statutes. E.g., McClure v. Board of Commissioners of La Plata County, 19 Colo. 122, 34 P. 763 (1893); Wright v. People in the Interest of Rowe, 131 Colo. 92, 279 P.2d 676 (1955); Michael v. John Hancock Mutual Life Insurance Co., 138 Colo. 450, 334 P.2d 1090 (1959). Statutes more restrictive than the rule are §§ 38-35-102 , 38-35-104 , 38-35-105 , 38-35-107 , and 38-35-108 , C.R.S.
Committee Comment to (16)
The rule liberalizes the hearsay exception for ancient documents by eliminating proof of execution (see general statement for this principle in 32A C.J.S., Evidence, Sec. 744, page 32) and, further, reduces the required age of such document to twenty years from thirty years. For Colorado authorities on the subject, see McGary v. Blakeley, 127 Colo. 495, 258 P.2d 770 (1953) and § 38-35-107 , C.R.S.
Committee Comment to (17)
Colorado authorities affecting this rule are: 4-2-724 , C.R.S.; Continental Divide Mining Investment Company v. Bliley, 23 Colo. 160, 166, 46 P. 633, 635 (1896); Willard v. Mellor, 19 Colo. 534, 36 P. 148 (1894); Kansas Pacific R.R. Company v. Lundin, 3 Colo. 94 (1876); Rio Grande Southern R.R. Company v. Nichols, 52 Colo. 300, 123 P. 318 (1912); Johnson v. Cousins, 110 Colo. 540, 135 P.2d 1021 (1943).
Committee Comment to (18)
Unlike the Federal Rule, the Colorado Rule allows the learned treatises to be admitted as exhibits in the discretion of the court. The former Colorado Rule seemed to be that only if such treatise had been relied upon by the witness in forming his opinion might it be admitted. Denver City Tramway v. Gawley, 23 Colo. App. 332, 129 P. 258 (1912); Wall v. Weaver, 145 Colo. 337, 358 P.2d 1009 (1961); Ross v. Colo. Nat'l Bank, 170 Colo. 436, 463 P.2d 882 (1970).
Committee Comment to (19)
The former Colorado rule limited such evidence to reputation among persons related by blood or marriage to the family in question. Epple v. First Nat'l Bank of Greeley, 143 Colo. 319, 352 P.2d 796 (1960).
Committee Comment to (20)
This rule is thought consistent with the former Colorado rule. See § 38-44-101 , C.R.S., re establishing disputed boundaries.
Committee Comment to (22)
The rule represents Colorado law by its inclusion of a nolo contendere plea. § 13-90-101 , C.R.S., construed to include a nolo contendere plea in Lacey v. People, 166 Colo. 152, 442 P.2d 402 (1968).
Committee Comment to (23)
A judgment, under the circumstances stated, creates the reputations, and is admissible subject to the limitations applicable to evidence of reputation.
Committee Comment to (24)
The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to Rule 807. This was done to facilitate additions to Rules 803 and 804. No change in meaning is intended.
Annotation I. General Consideration. Law reviews. For article, "Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview", see 50 U. Colo. L. Rev. 227 (1979). For article, "Admissibility of Prior Testimony", see 11 Colo. Law. 398 (1982). For article, "Admissibility of Governmental Studies to Prove Causation", see 11 Colo. Law. 1822 (1982). For article, "The Residual Exceptions to the Hearsay Rule: A Reappraisal", see 13 Colo. Law. 1818 (1984). For article, "Offering or Opposing Hearsay Under the Residual Exceptions-A User's Guide", see 14 Colo. Law. 1620 (1985). For article, "Mythological Rules of Evidence", see 16 Colo. Law. 1218 (1987); For article, "Hearsay as a Basis for Opinion Testimony", see 17 Colo. Law. 2337 (1988). For article, "The Residual Exception to the Hearsay Rule: Form Follows Substance", see 22 Colo. Law. 1197 (1993). For article, "Res Gestae Evidence", see 24 Colo. Law. 1567 (1995). Purpose of hearsay rule. The constitutional right to confrontation and the hearsay rule stem from the same roots, and are designed to protect similar interests based on the premise that testimony is much more reliable when given under oath at trial, where the declarant is subject to cross-examination and the jury may observe his demeanor. People v. Dement, 661 P.2d 675 (Colo. 1983). Testimony found to be hearsay. Sante Fe Energy Co. v. Baca, 673 P.2d 374 (Colo. App. 1983). Applied in Morrison v. Bradley, 622 P.2d 81 (Colo. App. 1980); Sims v. Indus. Comm'n, 627 P.2d 1107 (Colo. 1981); People in Interest of K.A.J., 635 P.2d 921 (Colo. App. 1981); Great W. Food Packers, Inc. v. Longmont Foods Co., 636 P.2d 1331 (Colo. App. 1981); Scruggs v. Otteman, 640 P.2d 259 (Colo. App. 1981); Fasso v. Straten, 640 P.2d 272 (Colo. App. 1982); People v. District Court, 664 P.2d 247 (Colo. 1983); People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 1983). II. Exceptions. A. In General. Burden of proof that statement falls within exception. The prosecution has the burden of showing that a statement falls within an exception to the hearsay rule. People in Interest of R.L., 660 P.2d 26 (Colo. App. 1983); Oldsen v. People, 732 P.2d 1132 (Colo. 1986). The proponent of evidence carries the the burden of establishing the preliminary facts essential to satisfy a particular hearsay exception. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980); People v. Garcia, 826 P.2d 1259 (Colo. 1992). Both § 13-25-129 and this rule are residuary rules and apply only if hearsay is not otherwise admissible under the other hearsay exceptions. Section 13-25-129 applies only to hearsay statements not otherwise admissible by statute or court rule. Because § 13-25-129 and this rule have different requirements for the admission of hearsay statements, confusion and inconsistent results may occur if either residuary provision may be applied to the same hearsay statement of a child sexual assault victim which is otherwise not admissible into evidence. Since the more specific provision should prevail, § 13-25-129 is the sole basis upon which hearsay evidence, which otherwise comes within the terms of that statute, may be admitted. People v. Diefenderfer, 784 P.2d 741 (Colo. 1989); People v. Bowers, 801 P.2d 511 (Colo. 1990). Declarant must not lack testimonial qualifications. To fall within any exception to the hearsay rule, the declarant himself must not lack the testimonial qualifications that would be required for him to take the stand. People in Interest of R.L., 660 P.2d 26 (Colo. App. 1983). Declarant's testimonial incapacity renders statement inadmissible. Where the testimonial incapacity of the declarant stems from a psychiatric disorder, and is such that the guarantees of trusworthiness implicit in the exceptions to the hearsay rule would not vitiate the incompetency, any testimony derived from that statement is not admissible. People in Interest of R.L., 660 P.2d 26 (Colo. App. 1983). A.5. Spontaneous Present Sense Impression. Witness' testimony that her daughter had identified an obscene phone caller as the defendant immediately after perceiving the caller's voice was properly permitted as spontaneous present sense impression exception to the hearsay exclusion. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990). Applied in People v. Franklin, 782 P.2d 1202 (Colo. App. 1989). B. Excited Utterance. Three requirements must be met for a statement to be admissible as an excited utterance. The event must be sufficiently startling to render normal reflective thought processes of the observer inoperative, the statement must be a spontaneous reaction to the occurrence, and direct or circumstantial evidence must exist to allow the jury to infer that the declarant had the opportunity to observe the startling event. People v. Stephenson, 56 P.3d 1112 (Colo. App. 2001); People v. Martinez, 83 P.3d 1174 (Colo. App. 2003); People v. Garrison, 109 P.3d 1009 (Colo. App. 2004). Excited utterance exception. What is of critical significance to res gestae, section (2), is the spontaneous character of the statement and its natural effusion from a state of excitement. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980) (case decided prior to effective date of C.R.E.); Cheney v. Hailey, 686 P.2d 808 (Colo. App. 1984). Hearsay statements are admissible under the excited utterance exception if there is some occurrence or event sufficiently startling to render normal reflective thought processes of an observer inoperative and if the statement of the declarant was a spontaneous reaction to the occurrence or event and not the result of reflective thought. W.C.L. v. People, 685 P.2d 176 (Colo. 1984); People v. Clements, 732 P.2d 1245 (Colo. App. 1986). In determining whether a statement is admissible as an excited utterance, trial court is afforded wide discretion and that determination will not be disturbed on appeal if it is supported by the evidence. Here, trial court properly admitted into evidence an audiotape of a statement made by the victim during a 911 telephone call. The call was placed only 15 minutes after the victim was stabbed. Being stabbed is a startling event and, thus, it was within trial court's discretion to determine that the victim was still under the excitement or stress of the stabbing at the time the statement was made. People v. Mullins, 104 P.3d 299 (Colo. App. 2004). Exception not restricted to statements arising directly from startling event. Although in most instances the "startling event" will be the act or transaction upon which the legal controversy is predicated, such as an assault or accident, the excited utterance exception is not restricted only to statements arising directly out of such events. People in Interest of O.E.P., 654 P.2d 312 (Colo. 1982). When the significance of a past event is revealed as a result of the startling event and is relevant, such testimony is admissible as an excited utterance exception to the hearsay rule exclusion. People v. Ojeda, 745 P.2d 274 (Colo. App. 1987). Declarant may be witness to event. Under the hearsay exception for an "excited utterance", the declarant may be a bystander or witness to the event rather than an actual participant. People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Green, 884 P.2d 339 (Colo. App. 1994). Declarant must have observed startling occurrence. An implicit requirement to be met to qualify a statement as an excited utterance, admissible under the hearsay exception, is that enough direct or circumstantial evidence exists to allow the jury to infer that the declarant had the opportunity to observe the startling occurrence. People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Garcia, 826 P.2d 1259 (Colo. 1992); People v. Green, 884 P.2d 339 (Colo. App. 1994). The threshold for satisfying the requirement that a declarant observed an event is minimal, and as long as there is evidence that leads the fact finder to reasonably infer that the declarant had the opportunity to observe the event that evidence should be permitted; the credibility of the witness and the weight to be given that evidence should be left to the fact finder. People v. Green, 884 P.2d 339 (Colo. App. 1994). The rationale behind the excited utterance exception is founded on the general reliability attaching to statements made under the stress of excitement. People in Interest of O.E.P., 654 P.2d 312 (Colo. 1982). Unlike some other hearsay exceptions, excited utterance evidence is not limited to unavailable declarants. The reason is that the extrajudicial assertion is likely to be better than a statement from the witness at trial after time has permitted reflection or memory has faded. People v. Dement, 661 P.2d 675 (Colo. 1983). Spontaneity and excitement sufficient guarantee of trustworthiness. The requirement of spontaneity and excitement subsumed by the res gestae exception furnishes a sufficient guarantee of trustworthiness implicit in the rationale of hearsay exceptions. People v. Roark, 643 P.2d 756 (Colo. 1982). Source of trustworthiness in child's statement. The element of trustworthiness underscoring the excited utterance exception, particularly in the case of young children, finds its source primarily in the lack of capacity to fabricate rather than the lack of time to fabricate. People in Interest of O.E.P., 654 P. 2d 312 (Colo. 1982); People v. Hulsing, 825 P.2d 1027 (Colo. App. 1991). Courts look to the effect of a particular event upon a declarant and, in the case of young children, the element of trustworthiness underscoring the excited utterance exception is primarily in the lack of capacity to fabricate rather than the lack of time to fabricate. People v. Ortega, 672 P.2d 215 (Colo. App. 1983). Automobile collision qualifies as a "startling event". Lovato v. Herrman, 685 P.2d 240 (Colo. App. 1984). A sexual assault may constitute a sufficiently startling event to admit hearsay statements of a child-victim. People v. Bolton, 859 P.2d 311 (Colo. App. 1993). Sexual assault and stabbing of victim constituted a startling event. Although the trial court acknowledged there was no way to know how much time had elapsed between the assault and the 911 phone call, there was substantial evidence in the record that the victim was hysterical at different times throughout the two-hour period that the victim made statements to the police officer. There was also testimony that during the two hours, the victim continually lapsed into French while speaking and repeatedly asked whether she was going to die. Furthermore, the officer testified that the victim was bleeding badly and was continually being examined and treated for injuries during the time the officer was with the victim. People v. King, 121 P.3d 234 (Colo. App. 2005). The fact that the victim's statements were made in response to questions does not preclude them from being excited utterances. People v. Martinez, 18 P.3d 831 (Colo. App. 2000); People v. Garrison, 109 P.3d 1009 (Colo. App. 2004); People v. King, 121 P.3d 234 (Colo. App. 2005). The totality of the circumstances, including the severity of the victim's injuries, her agitated emotional state, and the brief time between the injury and the statements, supports the trial court's determination that the statements were admissible under this rule. People v. Martinez, 18 P.3d 831 (Colo. App. 2000). Statements by victim who was upset, crying, and in emotional and physical distress that were made in temporal proximity to defendant's yelling and assault of victim properly held to be excited utterances. Compan v. People, 121 P.3d 876 (Colo. 2005). Contemporaneity not required. Contemporaneity of the act and the assertion is not required for the res gestae exception to the hearsay rule to be applicable. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980) (case decided prior to effective date of C.R.E.); People v. Handy, 657 P.2d 963 (Colo. App. 1982); Cheney v. Hailey, 686 P.2d 808 (Colo. App. 1984). Time interval of a half-hour between the alleged assault and the hearsay declaration admitted under the res gestae exception did not constitute an impediment to the admissibility of the statement. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980) (case decided prior to effective date of CRE). But statement made after time interval of three hours in which declarant had several independent interludes of reflective thought was not admissible as an excited utterance. People v. Stephenson, 56 P.3d 1112 (Colo. App. 2001). Temporal interval between event and statement not conclusive on admissibility. Although the temporal interval between the "startling event" and the child's statement is not without significance, it is not conclusive on the question of admissibility. People in Interest of O.E.P., 654 P.2d 312 (Colo. 1982); People v. Sandoval, 709 P.2d 90 (Colo. App. 1985); People v. Clements, 732 P.2d 1245 (Colo. App. 1986). Exculpatory statement of defendant made hours after arrest not part of res gestae. Where hours after the defendant is placed under arrest, he gives an exculpatory statement to the police and the district attorney objects to the admission of the statement into evidence at trial on the ground that the statement is hearsay, his objection is valid, because the defendant's explanatory statement is not so contemporaneous that it can be considered part of the res gestae. People v. Gilkey, 181 Colo. 103, 507 P.2d 855 (1973). Trial court to determine whether statement admissible. The trial court is in a preferred position to determine whether a particular event causes sufficient excitement in the declarant to render a statement admissible as an excited utterance. People in Interest of O.E.P., 654 P.2d 312 (Colo. 1982); People v. Bashara, 677 P.2d 1376 (Colo. App. 1983); People v. Sandoval, 709 P.2d 90 (Colo. App. 1985). Criminal cases. Section (2), the "excited utterance" exception to the hearsay rule, is not unconstitutional as applied in every criminal case. People v. Dement, 661 P.2d 675 (Colo. 1983). When declarant is unavailable, evidence admitted under this exception does not violate defendant's right to confront prosecution witnesses. People v. Mitchell, 829 P.2d 409 (Colo. App. 1991). A declarant is unavailable in the constitutional sense when the prosecution makes a reasonable, good faith effort to produce a witness without success; however, in cases where the attempt to produce a witness would be futile, a reasonable effort by the prosecution may be no effort. People v. Green, 884 P.2d 339 (Colo. App. 1994). Excited utterance is nontestimonial if not made under circumstances that would lead an objective witness to reasonably believe the statement would be available for use at a later trial. Compan v. People, 121 P.3d 876 (Colo. 2005). Testimony held admissible under the excited utterance exception to the hearsay rule. People v. Jones, 665 P.2d 127 (Colo. App. 1982); Kielsmier v. Foster, 669 P.2d 630 (Colo. App. 1983); People v. Bashara, 677 P.2d 1376 (Colo. App. 1983); People v. Franklin, 683 P.2d 775 (Colo. 1984); People v. Sandoval, 709 P.2d 90 (Colo. App. 1985); People v. Clements, 732 P.2d 1245 (Colo. App. 1986); People v. Bolton, 859 P.2d 311 (Colo. App. 1993); Canape v. Peterson, 878 P.2d 83 (Colo. App. 1994); People v. Martinez, 83 P.3d 1174 (Colo. App. 2003). Testimony held inadmissible. Although bystanders to an event may be sufficiently affected by its excitment to have their utterances rendered reliable, and thus excepted from the rule against hearsay statements, in this case there was no evidence of the emotion or spontaneity required to qualify the statement of the unknown declarant as an excited utterance. People v. Mares, 705 P.2d 1013 (Colo. App. 1985); People v. Green, 884 P.2d 339 (Colo. App. 1994). Trial court abused its discretion in admitting testimony as an excited utterance even though the interview took place shortly after the startling event of defendant's arrest. The statements did not relate to the startling event and instead related to events that had occurred weeks previously. People v. Suazo, 87 P.3d 124 (Colo. App. 2003). Statements held inadmissible. W.C.L. v. People, 685 P.2d 176 (Colo. 1984); People v. Koon, 724 P.2d 1367 (Colo. App. 1986); People v. Franklin, 782 P.2d 1202 (Colo. App. 1989). C. Then Existing Mental, Emotional, or Physical Condition. Rationale for exception. The state of mind exception to the hearsay rule is based upon the truthworthiness of such statements which is presumed due to their spontaneity. Morrison v. Bradley, 655 P.2d 385 (Colo. 1982). Statement must be made under circumstances indicating sincerity. The rule requires that such declarations relate to a then existing state of mind and that they must have been made under circumstances indicating sincerity. Morrison v. Bradley, 655 P.2d 385 (Colo. 1982). Section (3) tracks the common-law definition of the state of mind exception. Morrison v. Bradley, 655 P.2d 385 (Colo. 1982). Common-law rule. Under the common-law evidentiary rule, the tests applied to admit evidence of design or plan are "a present existing state of mind, something said in the usual course of things under the circumstances, and under circumstances excluding an ulterior purpose". Morrison v. Bradley, 655 P.2d 385 (Colo. 1982). Statements by an unavailable witness admitted pursuant to the state of mind hearsay exception do not violate a defendant's state or federal confrontation rights. The state of mind hearsay exception is firmly rooted. The reliability of such hearsay statements, therefore, is implied under the test set forth in Ohio v. Roberts, 448 U.S. 56 (1980), and statements bear sufficient indicia of reliability to satisfy the second part of the Dement two-part test. Accordingly, trial court's failure to make a reliability determination regarding statements by an unavailable witness did not constitute plain error. People v. Gash, 165 P.3d 779 (Colo. App. 2006). The state of mind exception to the hearsay rule is based upon the trustworthiness of spontaneous statements. The availability of the declarant is immaterial if the statement is made under circumstances indicating sincerity. Statements of present intent to engage in future conduct may be used as proof of the subsequent act. People v. Nunez, 698 P.2d 1376 (Colo. App. 1984), aff'd, 737 P.2d 422 (Colo. 1987). Mental condition of sexual assault victim. Mother of sexual assault victim may testify that victim was fearful and distraught for several months after assault since such testimony is admissible under state of mind exception to the hearsay rule. People v. Haymaker, 716 P.2d 110 (Colo. 1986). Prohibition inapplicable when hearsay offered to prove state of mind. When hearsay is offered to provide the basis for the defendant's state of mind, the truth of the statement is not the criterion for admission, and the general hearsay prohibition does not apply. People v., Burress, 183 Colo. 146, 515 P.2d 460 (1973); People v. Spring, 713 P.2d 865 (Colo. 1985), rev'd on other grounds, 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 809 (1987). When state of mind exception applicable. The state of mind exception to the hearsay rule, section (3), is not applicable to statements purportedly made by the victim in a case where the state of mind of the victim is not a material issue. People v. Borrelli, 624 P.2d 900 (Colo. App. 1980). The more recent and better-reasoned cases allow hearsay expressions of a victim's fear of a defendant only where the state of mind of the victim is clearly relevant to a material issue in the case. People v. Borrelli, 624 P.2d 900 (Colo. App. 1980). Out of court statements regarding the victim's fear of the defendant are admissible to explain the victim's state of mind. People v. Cardenas, 25 P.3d 1258 (Colo. App. 2000). Assertion must depict declarant's, not another's, state of mind. Since the state of mind exception admits the assertion for the truth of the matter asserted, it is basic to admissibility that the assertion essentially depict the declarant's then existing state of mind, as distinguished from a description of the acts or state of mind of another. People v. Madson, 638 P.2d 18 (Colo. 1981); People v. Franklin, 782 P.2d 1202 (Colo. App. 1989). Statements of memory or belief are excluded from the state of mind exception. People v. Madson, 638 P.2d 18 (Colo. 1981). Rule permits the introduction of statements of memory or belief to prove the fact remembered or believed as to the execution, revocation, identification, or terms of a declarant's will. Murphy v. Glenn, 964 P.2d 581 (Colo. App. 1998). Statements of present intent of future conduct included. The state of mind exception encompasses statements of the declarant's present intent to engage in future conduct as proof of the subsequent act. People v. Madson, 638 P.2d 18 (Colo. 1981). Victim's statement to police officer describing physical injuries within the scope of admissible evidence under the "then existing mental, emotional, or physical condition" exception. Pena v. People, 173 P.3d 1107 (Colo. 2007). Applied in Stephen Equipment Co. v. Baca, 703 P.2d 1332 (Colo. App. 1985); People v. Avery, 736 P.2d 1233 (Colo. App. 1986); People v. McGrath, 793 P.2d 664 (Colo. App. 1989). D. Statements for Purposes of Medical Diagnosis or Treatment. Admission of nontreating physician's recital of a defendant's statements. Nontreating physician's recital of a defendant's statements is admissible for the truth of the matters they contain. The test for admission reflects a trustworthiness rationale and is: First, is the declarant's motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis or treatment. People v. Stiles, 692 P.2d 1124 (Colo. App. 1984). Statements made by defendant to a non-treating physician should be admitted once it is established that the statements were made for the purpose of diagnosis or treatment, and were reasonably pertinent to diagnosis or treatment, and were relied upon by the physician in arriving at an expert opinion, without regard to any independent demonstration of trustworthiness. King v. People, 785 P.2d 596 (Colo. 1990). However, even admission of testimony that is not pertinent to medical treatment or diagnosis may not be harmful error if it is merely cumulative of other evidence. People v. Galloway, 726 P.2d 249 (Colo. App. 1986). Victim's statements to a paramedic admissible where statements were made in response to standard questions designed to elicit facts necessary for medical diagnosis and treatment and where all circumstances show that the victim's motive in making the statements was to obtain treatment. People v. Martinez, 18 P.3d 831 (Colo. App. 2000); People v. Joyce, 68 P.3d 521 (Colo. App. 2002). Testimony of social worker, psychologist, and physician as to child's statements concerning sexual contact with her father were not admissible under the "medical exception" to the hearsay rule absent any evidence that the child was capable of recognizing, at the time of such statements, the need to provide accurate information for purposes of medical diagnosis or treatment. Oldsen v. People, 732 P.2d 1132 (Colo. 1986). Evidence of plaintiff's past cocaine use not admissible under subsection (4) in medical malpractice case. Statements regarding plaintiff's past cocaine use were inadmissible hearsay where they were not made for the purpose of medical diagnosis or treatment, did not concern cocaine use around the time of the alleged malpractice, and were disputed and highly prejudicial. Hearsay statements relating to fault that are not relevant to diagnosis or treatment are inadmissible. Haralampopoulos v. Kelly, __ P.3d __ (Colo. App. 2011). Doctors' diagnoses, recited and summarized in administrative law judge decision, did not come within the exception provided in section (4) because they did not constitute the patient's recitation of information necessary for diagnosis or treatment. Leiting v. Mutha, 58 P.3d 1049 (Colo. App. 2002). Self-serving statements of defendant concerning drug use upon being booked for murder did not qualify under this rule. Such statements were not made for the purpose of obtaining diagnosis from a health care professional, but as part of jail's routine procedures. People v. Thomas, 962 P.2d 263 (Colo. App. 1997). Victim's statements to nurse practitioner were inadmissible hearsay where the type of dispute or identity of the assailant was not necessary for or pertinent to the nurse practitioner's diagnosis or treatment. The record showed the challenged statements were cumulative of testimony by the victim and an investigating officer, therefore, any error in the admission of the challenged statements was harmless. People v. Jaramillo, 183 P.3d 665 (Colo. App. 2008). Trial court did not commit reversible error in admitting hearsay statements made by victim to physician who examined her. The statements included the victim's description of the defendant's actions that had caused her pain and bleeding, to assist with his medical diagnosis. Moreover, the physician's testimony was cumulative of testimony provided by the victim, the woman with whom the victim was residing, and the caseworker. People v. Perez, 972 P.2d 1072 (Colo. App. 1998). E. Recorded Recollection. This exception is inapplicable where a notation on a document refreshed a witness of his actions taken six weeks before trial and not so that he independently recalled the date of his conversation with the defendant that had taken place just before the accident for which defendant was on trial. People v. Clary, 950 P.2d 654 (Colo. App. 1997). F. Records of Regularly Conducted Activity. Law reviews. For article, "C.R.E. 803(6): Applying the Business Records Exception to Third-Party Information", see 29 Colo. Law. 55 (May 2000). For article, "C.R.E. 803(6): Admissibility of Customer-Supplied Information Under Business Records Hearsay Exception", see 32 Colo. Law. 89 (September 2003). Business record exception justified by trustworthiness. Where sufficient guarantees of trustworthiness and accuracy are present, application of the business record exception to hearsay evidence is justified. People v. Holder, 632 P.2d 607 (Colo. App. 1981); Ford v. Bd. of County Comm'rs, 677 P.2d 358 (Colo. App. 1983), cert. dismissed, 679 P.2d 579 (Colo. 1984). Contractor's invoices are business records. Contractor's invoices, based on employee time sheets, are admissible as records kept in the regular course of business. Herman v. Steamboat Springs Super 8 Motel, Inc., 634 P.2d 1005 (Colo. App. 1981). Activities of government agencies may be considered business records for the purposes of Crim. P. 26.2, if the other requirements of the rule are met and the proper foundation is laid. People v. Stribel, 199 Colo. 377, 609 P.2d 113 (1980) (case decided prior to effective date of C.R.E.). Assessments made by condominium association on a quarterly basis admissible. Chateau Chaumont Condo. v. Aspen Title Co., 676 P.2d 1246 (Colo. App. 1983). Records prepared by another source, if adopted and integrated in the regular course of established business procedures into the records sought to be introduced are admissible even if the identity of the person whose first hand knowledge was the basis of a particular entry is not established. Teac Corp. of Am. v. Bauer, 678 P.2d 3 (Colo. App. 1984). Fraud investigator's records for credit processing association are records of regularly conducted activity justifying admissibility of calculations based thereon. People v. Burger-Levy, 677 P.2d 351 (Colo. App. 1983). Complaints filed by third parties with the Colorado attorney general's consumer fraud office do not qualify as business records because they are not part of the work product generated by that office. Tincombe v. Colo. Const. & Supply Corp. 681 P.2d 533 (Colo. App. 1984). Doctors' diagnoses, recited and summarized in administrative law judge decision, did not qualify as medical records because they constituted a summary and interpretation of the records, not the records themselves, and in any event were not authenticated by the custodian or other qualified witness. Leiting v. Mutha, 58 P.3d 1049 (Colo. App. 2002). Police reports may qualify as business records because the drafters of the federal rule of evidence 803(6), identical to this rule, contemplated including police reports in the business records exception when the other requirements of the rule are met. Lannon v. Taco Bell, Inc., 708 P.2d 1370 (Colo. App. 1985), aff'd on other grounds, 744 P.2d 43 (Colo. 1987). But statements of defendant concerning his own drug use, upon being booked for murder, did not qualify under this rule. The business records exception requires that the source of the proffered information does not indicate lack of trustworthiness, and in the context of the case, the defendant's statements might properly be characterized as self-serving. People v. Thomas, 962 P.2d 263 (Colo. App. 1997). Specific requirement in § 16-3-309(5) that laboratory testing technician be made available at trial upon timely request overrides general hearsay exception of subsection (6) of this rule. When timely request had been made, trial court erred in admitting laboratory report without technician's testimony as a business record. People v. Williams, 183 P.3d 577 (Colo. App. 2007). Relevant and material business records, including computer records, qualify for the business records exception when supported by an adequate foundation showing that: (1) The records were made in the regular course of business; (2) those participating in the record making were acting in the routine of business; (3) the input procedures were accurate; (4) the entries were made within a reasonable time after the occurrence in question; and (5) the information was transmitted by a reliable person with knowledge of the event reported. Benham v. Pryke, 703 P.2d 644 (Colo. App. 1985), rev'd on other grounds, 744 P.2d 67 (Colo. 1987); Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985); Schmutz v. Bolles, 800 P.2d 1307 (Colo. 1990); Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992); Hauser v. Rose Health Care Sys., 857 P.2d 524 (Colo. App. 1993). The information contained in business records may be transmitted through a number of individuals as long as the chain of transmission begins with the individual who has actual knowledge of each person in the chain is acting in ordinary course of business. Schmutz v. Bolles, 800 P.2d 1307 (Colo. 1990). The trial court erred in refusing to admit an investigative report of insurance adjuster because the report was prepared as part of the normal routine business practice necessary for each insurance file, the adjuster prepared the report using information he received from one in knowledge, and the report was prepared within a brief time after the adjuster received the information. Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985). Trial court did not abuse discretion in admitting computer records as business records even though the records were not authenticated pursuant to C.R.E. 901. Although C.R.E. 901(b)(9) may be used to authenticate computer records, there is no requirement that computer records be authenticated only in this way. People v. Huehn, 53 P.3d 733 (Colo. App. 2002). Computer business records have a greater level of trustworthiness than an individually generated computer document. People v. Huehn, 53 P.3d 733 (Colo. App. 2002). Business records containing statements by an outsider are admissible when the information is provided as part of a business relationship between a business and the outsider and there is evidence that the business substantially relied upon the information contained in the records. Trial court did not abuse its discretion in admitting such records. People in Interest of R.D.H., 944 P.2d 660 (Colo. App. 1997). It was unnecessary to establish that document admitted under this rule was prepared by defendant's employee where defendant's chief financial officer testified that the document was received in the ordinary course of defendant's business, that the document was the type of document defendant routinely received from supplier, and that supplier did not inform defendant that document was inaccurate. Hauser v. Rose Health Care Sys., 857 P.2d 524 (Colo. App. 1993). Trial court did not err in admitting certain documents offered in support of plaintiff's damage claim on grounds that documents constituted inadmissible heresay where jury was instructed that documents were not being admitted for truth of matter asserted and counsel for defendant confirmed that no additional jury instruction was required. Hauser v. Rose Health Care Sys., 857 P.2d 524 (Colo. App. 1993). Security company's incident report inadmissible where there was no evidence as to: who recorded the report; whether the report was kept in the ordinary course of business; whether the security guard had knowledge of the truthfulness of the recorded information; whether a third party's statement in the report was sworn; or whether the statement was accurately translated by an interpreter in the regular course of business. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003). Industrial commission files are business records. Industrial commission file used in good cause determination of untimely requests for review of referee's decision, pursuant to commission regulations enacted under an express grant of legislative authority, is admissible as a business records exception to the hearsay rule. Kriegel v. Indus. Comm'n, 702 P.2d 290 (Colo. App. 1985). Accident reports may be admissible as business records. Armentrout v. FMC Corp., 819 P.2d 522 (Colo. App. 1991). Evidence provided an adequate basis for admission under section (6) of a medical record entry made by nurse. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992). Admission of transport note entered by nurse in transport team was not error. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992). Applied in Ed Hackstaff Concrete, Inc. v. Powder Ridge Condo, 679 P.2d 1112 (Colo. App. 1984); Thirsk v. Ethicon, Inc., 687 P.2d 1315 (Colo. App. 1983); People v. Lagunas, 710 P.2d 1145 (Colo. App. 1985); Adams County Dept. of Soc. Servs. ex rel. Tyler v. Tyler, 714 P.2d 1333 (Colo. App. 1986); Kelln v. Colo. Dept. of Rev., 719 P.2d 358 (Colo. App. 1986); Jacob v. Com. Highland Theatres, Inc., 738 P.2d 6 (Colo. App. 1986); Columbia Sav. & Loan Ass'n v. Zelinger, 794 P.2d 231 (Colo. 1990); Lorenz v. Martin Marietta Corp., Inc., 802 P.2d 1146 (Colo. App. 1990), aff'd, 823 P.2d 100 (Colo. 1992). G. Records of Vital Statistics. Coroner's reports and death certificates. Coroner's reports qualify as public records, and death certificates are records of vital statistics. Bernstein v. Rosenthal, 671 P.2d 979 (Colo. App. 1983). Admitting death certificate containing hearsay not error where jury instructed to ignore hearsay. The admission of a death certificate containing the statement that the victim was "helping neighbor investigate burglary of neighbor's store and shot by one of the burglars during this investigation", was not reversible error, particularly when the court later instructed the jury to ignore that portion of the certificate, although it would be much better to practice to delete such as included hearsay. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). H. Learned Treatises. Law reviews. For article, "C.R.E. 803(18): The Learned Treatise Exception to the Hearsay Rule", see 38 Colo. Law. 39 (March 2009). Expert may be cross-examined using learned treatises even though he did not rely upon them in reaching his conclusions. People v. Beasley, 43 Colo. App. 488, 608 P.2d 835 (1979). Hearsay evidence held properly admitted. Trial court held not to have erred in a sanity trial in admitting alleged hearsay testimony under the exception in section (18). See People v. Clark, 662 P.2d 1100 (Colo. App. 1982). Colorado driver handbook not a learned treatise under section (18). Garcia v. Mekonnen, 156 P.3d 1171 (Colo. App. 2007). I. Public Records and Reports. Complaints filed by third parties with the Colorado attorney general's consumer fraud office do not qualify as public records because they comprise unsubstantiated allegations, rather than "factual findings". Tincombe v. Colo. Const. & Supply Corp. 681 P.2d 533 (Colo. App. 1984). Administrative law judge decision reciting doctors' testimony did not qualify as a public record because the recitations were not factual findings or conclusions of the agency, but merely summaries of the doctors' own statements. Leiting v. Mutha, 58 P.3d 1049 (Colo. App. 2002). Police booking reports fall outside of the exclusion contained in subsection (8)(B) for documents in criminal cases relating to matters observed by police or law enforcement and are thus admissible as public records. Unlike police investigative reports, booking reports do not raise concerns of trustworthiness or potential bias. Rather, they are documents routinely prepared in a non-adversarial setting by officials whose only motivation is to accurately and efficiently record uncontroversial information relating to the fact that an arrest was made, and not the facts leading to the arrest. People v. Warrick, __ P.3d __ (Colo. App. 2011). Applied in People v. Fueston, 717 P.2d 978 (Colo. App. 1985), aff'd in part and rev'd in part on other grounds, 749 P.2d 952 (Colo. 1988). J. Other Exceptions. Rule permits hearsay statement which has circumstantial guarantees of trustworthiness equivalent to other hearsay exceptions to be admitted if the court determines that it is offered as evidence of a material fact and if it is more probative on the point for which it is offered than any other evidence which its proponent could reasonably produce. Abdelsamed v. New York Life Ins. Co., 875 P.2d 421 (Colo. App. 1992), rev'd sub nom. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994). Factors to be used to determine trustworthiness are: (1) The nature and character of the statement; (2) the relationship of the parties; (3) the motivation of the declarant; (4) the circumstances under which the statement was made; (5) the knowledge and qualifications of the declarant; (6) the existence or lack of corroboration; and (7) the availability of the declarant at trial for cross-examination. Abdelsamed v. New York Life Ins. Co., 857 P.2d 421 (Colo. App. 1992), rev'd sub nom. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994). Test applied in Abdelsamed v. New York Life Ins. Co., 857 P.2d 421 (Colo. App. 1992), rev'd sub nom. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994). Statement admissible under residual hearsay exception if: (1) The statement has equivalent circumstantial guarantees of trustworthiness; (2) the statement is offered as evidence of a material fact; (3) the statement is more probative than any other evidence that can be procured through reasonable efforts; (4) the general purposes of the rules and the interests of justice will best be served by admission of the statement into evidence, and (5) the proponent of the statement must give the adverse party notice of the intent to offer the statement, including the name and address of the declarant. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994). Statements of three deceased witnesses properly read into record under residual hearsay exception when all parties agreed to what would be read. People v. Melanson, 937 P.2d 826 (Colo. App. 1996). Residual hearsay exception not adopted. The supreme court declined to adopt the residual exception without an opportunity for public comment and an effective date which would allow for uniform application. W.C.L. v. People, 685 P.2d 176 (Colo. 1984) (decided prior to adoption of section (24)). Reputation among family members concerning a person's date of birth is admissible hearsay. People v. Buhrle, 744 P.2d 747 (Colo. 1987). Hearsay statements of child concerning sexual contact with her father which were testified to by a social worker, psychologist, and physician were sufficiently trustworthy to qualify as an exception to the hearsay rule and were admissible. Oldsen v. People, 732 P.2d 1132 (Colo. 1986). Exception for judgment of previous conviction applied in Banek v. Thomas, 733 P.2d 1171 (Colo. 1986). Evidence in a packet pertaining to one conviction admitted under § 16-13-102 that also is evidence of another separate and distinct conviction is admissible to prove the other separate and distinct conviction for habitual offender purposes. People v. Tafoya, 985 P.2d 26 (Colo. App. 1999). Medical records have long been considered the prototype of business records for which admission as an exception to the hearsay rule is appropriate. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992). Admission of transport note entered by nurse in transport team was not error. The trial court correctly determined that the entry met the requirements of paragraph (24). Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992). Kelley blue book may be admitted under the market reports exception to the hearsay rule since the blue book is a market report generally used and relied upon by the public. People v. Thornton, 251 P.3d 1147 (Colo. App. 2010). Applied in People v. Guilbeaux, 761 P.2d 255 (Colo. App. 1988).