Colo. R. Evid. 804
A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.
(Federal Rule Identical.)
(Federal Rule Identical.)
CRE 804
Committee Comment to (b)(1)
The Federal Rule is substantially the same as the Colorado Rule; except there is no reference to subsection (b) (2) in the Colorado Rule, as there is no Colorado subsection (b) (2). As to testimony given at a preliminary hearing, see People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979). This rule expands upon the former rule of evidence in Colorado. For authorities on the use of such evidence in Colorado, see: Rule 32 of Colorado Rules of Civil Procedure; Emerson v. Burnett, 11 Colo. App. 86, 52 P. 752 (1898); Daniels v. Stock, 23 Colo. App. 529, 130 P. 1031 (1913); Woodworth v. Gorsline, 30 Colo. 186, 69 P. 705 (1902); Henwood v. People, 57 Colo. 544, 143 P. 373 (1914); Gibson v. Gagnon, 82 Colo. 108, 257 P. 348 (1927); Duran v. People, 156 Colo. 385, 399 P.2d 412 (1965); Insul-Wool Insulation Corp. v. Home Insulation, Inc., 176 F.2d 502 (10th Cir. 1949).
Committee Comment to (b)(2)
The Federal rule relates to a statement under belief of impending death. The admissibility of the dying declarations of a deceased person is governed by § 13-25-119 , C.R.S.
Committee Comment to (b)(3)
The rule was revised, consistent with recent amendments to FRE 804(b)(3), only to clarify that corroborating circumstances are required regardless of whether a statement is offered to inculpate or exculpate an accused. See People v. Newton, 966 P.2d 563 (Colo. 1998) (prosecutors seeking to admit statements against the accused must satisfy the corroboration requirement solely by reference to the circumstances surrounding its making)..
Committee Comment to (b)(4)
This rule expanded the former Colorado rule to admit statements of unrelated associates. Some independent proof of relationship under (B) will continue to be required.
Committee Comment to (b)(5)
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 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 comment, "Confrontation of Child Victim-Witnesses: Trauma, Unavailability, and Colorado's Hearsay Exceptions for Statements Describing Sexual Abuse", see 60 Colo. L. Rev. 659 (1989). For article, "The Residual Exception to the Hearsay Rule: Form Follows Substance", see 22 Colo. Law. 1197 (1993). For article, "Rules 801 and 804: The Admissibility of Out-of-Court Statements Made by Present and Former Employees", see 26 Colo. Law. 77 (September 1997). Unavailability under subsection (a)(1). In order for a declarant to be considered "unavailable" under subsection (a)(1), the declarant must actually invoke the privilege before the trial court, and the trial court must rule that the privilege is available. People v. Rosenthal, 670 P.2d 1254 (Colo. App. 1983). Previous assertion of the privilege against self-incrimination by a witness for the defendant in an earlier proceeding was insufficient as a matter of law to satisfy the requirement of unavailability under subsection (a)(1). People v. Barnum, 23 P.3d 1237 (Colo. App. 2001), aff'd by operation of law, 53 P.3d 646 (Colo. 2002). Declarant-codefendant in a criminal proceeding must be presumed unavailable for purposes of subsection (a) even if present in court. Otherwise, declarant who is a codefendant could create error by becoming "available" by deciding to testify only after hearsay statements against interest were admitted into evidence pursuant to this rule. People v. Reed, 216 P.3d 55 (Colo. App. 2008). To satisfy the requirements of constitutional confrontation, a party offering a witness' former testimony must establish the present unavailability of the witness. Also, there must have been a sufficient opportunity for the accused to cross-examine the witness at the former hearing so as to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. People v. Madonna, 651 P.2d 378 (Colo. 1982). C.R.C.P. 32 is an independent and alternative vehicle to section (b)(1) of this rule for admitting deposition testimony into evidence in civil cases. Margenau v. Bowlin, 12 P.3d 1214 (Colo. App. 2000). The determinative inquiry of the availability of the declarant is not his or her availability at the time of the pretrial hearing but his or her availability at the time of trial. Blecha v. People, 962 P.2d 931 (Colo. 1998); People v. Barnum, 23 P.3d 1237 (Colo. App. 2001), aff'd by operation of law, 53 P.3d 646 (Colo. 2002). Inability to remember prior testimony tantamount to denial. For the purpose of introducing the prior testimony of a witness, the witness' inability to remember a statement is tantamount to a denial that he made the statement. People v. Baca, 633 P.2d 528 (Colo. App. 1981). Extrinsic evidence admissible to prove prior statement. Where a witness does not remember making a prior statement, extrinsic evidence is admissible to prove that the witness made the prior statement. People v. Baca, 633 P.2d 528 (Colo. App. 1981). Where age is issue, party or witness may testify as to his age, and such testimony is competent evidence, being a generally recognized exception to the hearsay rule. Maddox v. People, 178 Colo. 366, 497 P.2d 1263 (1972). Prior trial testimony admissible when party against whom it is offered had opportunity to cross-examine the witness fully at the prior proceeding. The scope and limits of cross examination lie within sound discretion of trial court and absent showing of abuse of discretion does not constitute reversible error. People v. Bowman, 738 P.2d 387 (Colo. App. 1987). Whether declarant's statement was a statement against interest is applied in People v. Shields, 701 P.2d 133 (Colo. App. 1985). Statement was not against the declarant's penal interest where the version of the declarant's statement proffered at hearing did not expose the declarant to criminal liability. People v. Thompson, 950 P.2d 608 (Colo. App. 1997). Statements of criminal liability made by defendant offered for purposes of mitigation inadmissible under (b)(4) because they were in favor of rather than against defendant's penal interest. People v. Atkins, 844 P.2d 1196 (Colo. App. 1992); People v. Orona, 907 P.2d 659 (Colo. App. 1995). Reliability of custodial statements. Whether a declarant who makes a statement against penal interest was in police custody when the statement was given is but one factor to be considered in determining whether the attendant circumstances confirm the statement's trustworthiness. People v. Moore, 693 P.2d 388 (Colo. App. 1984). Subsection (b)(3) is identical to the federal rule and federal interpretation is persuasive authority of its meaning. People v. Lupton, 652 P.2d 1080 (Colo. App. 1982); People v. Nyberg, 711 P.2d 719 (Colo. App. 1985). Subsection (b)(3) did not apply since the declarant was acquitted before the defendant's trial began and was therefore available to testify at that trial. People v. Blecha, 940 P.2d 1070 (Colo. App. 1996), aff'd, 962 P.2d 931 (Colo. 1998). Examination of corroborative circumstances within trial court's discretion. The examination of corroborative circumstances, in subsection (b)(3), is a matter of discretion for the trial court. People v. Lupton, 652 P.2d 1080 (Colo. App. 1982). In addressing the question of corroboration, the trial court must balance all the evidence available. People v. Nyberg, 711 P.2d 719 (Colo. App. 1985). In balancing whether sufficient corroborating circumstances exist, the examination focuses on when and to whom the statement was made, the presence or absence of corroborating evidence of the statement, the availability of the declarant to testify and, in the very real sense, whether the declarant's statement is truly against his penal interest, considering the likelihood of him being actually prosecuted. People v. Lupton, 652 P.2d 1080 (Colo. App. 1982). In determining whether sufficient corroborating circumstances exist to permit introduction of a statement against interest into evidence, the trial court must examine, among other circumstances, when and to whom the statement is made and determine whether other independent evidence corroborates the contents of the statement. People v. Harding, 671 P.2d 975 (Colo. App. 1983). The "unavailability" of a declarant for purposes of determining the admissibility of hearsay testimony rests on the good faith efforts made to produce such declarant, which efforts are based on a standard of reasonableness. People v. Walters, 765 P.2d 616 (Colo. App. 1988). Test of good faith by prosecution in securing witness's attendance was shown where witness had been deported to Mexico despite protests by prosecution, was under orders to return for trial, had been subpoenaed by the defense, and was notified by the prosecution via a letter shortly before trial. People v. Hernandez, 899 P.2d 297 (Colo. App. 1995). Statements are not admissable pursuant to this rule where prosecution failed to prove the declarant's unavailability. People v. Franklin, 782 P.2d 1202 (Colo. App. 1989). A witness with a physical or mental disability is unavailable in the constitutional sense only if the disability is of a nature that requiring the witness to testify would result in further physical or mental injury to the witness and is of such a permanency that the witness would continue to be unavailable even if a reasonable continuance of the trial were to be granted. People v. Lyons, 907 P.2d 708 (Colo. App. 1995). Whether the declarant was unavailable is applied in People v. Arguello, 737 P.2d 436 (Colo. App. 1987). Trial court was correct in refusing to treat witness as "unavailable" where witness testified extensively and, although her memory was selective, witness's selective memory lapses benefited defendant. People v. Aguirre, 839 P.2d 483 (Colo. App. 1992). Court need not make specific findings to support conclusions that child is medically unavailable to testify due to emotional trauma pursuant to § 18-3-413(4) when courts findings are based upon uncontradicted testimony of experts who had interviewed the children. People v. Thomas, 803 P.2d 144 (Colo. 1990). Statement clearly against penal interest that happens also to implicate defendant was properly admitted under (b)(3) as an exception to the hearsay rule. People v. Blecha, 940 P.2d 1070 (Colo. App. 1996), aff'd, 962 P.2d 931 (Colo. 1998). For the purpose of limiting application of the "residual exception" to the hearsay rule, a trial court should make on-the-record findings that a hearsay statement satisfies the prerequisites for admissibility under subsection (b)(5). People v. Fuller, 788 P.2d 741 (Colo. 1990). Grand jury testimony of deceased must satisfy foundational requirements of subsection (b)(1) in order to be admissible. Party seeking admission of testimony must show a prior opportunity by the party against whom the testimony is offered to develop such testimony, and a similar motive to do so. In re Lynde, 922 F.2d 1448 (10th Cir. 1991). In murder trial, victim's prior statements in verified complaint to obtain a restraining order were supported by circumstantial guaranties of trustworthiness and were properly admissible. People v. Meyer, 952 P.2d 774 (Colo. App. 1997). Harmless error. Trial court's failure to establish that a hearsay statement satisfied the prerequisites for admissibility under subsection (b)(5) proved harmless error because the record revealed that the statements were supported by circumstantial guarantees of trustworthiness and that the statements were cumulative and did not substantially influence the verdict or affect the fairness of the trial proceedings. People v. Fuller, 788 P.2d 741 (Colo. 1990). In determining whether an error was harmless beyond a reasonable doubt, a reviewing court should consider factors including: The importance of witness' testimony to the prosecution's case; whether the testimony is cumulative; the presence or absence of corroborating or contradictory evidence on the material points of the witness' testimony; the extent of the cross-examination otherwise permitted; and the overall strength of the prosecution's case. Merritt v. People, 842 P.2d 162 (Colo. 1992); People v. Barnum, 23 P.3d 1237 (Colo. App. 2001), aff'd by operation of law, 53 P.3d 646 (Colo. 2002); People v. Harris, 43 P.3d 221 (Colo. 2002). Considering the independent evidence linking the defendant to the crime, the persuasive corroborative evidence substantiating the victim's account of the assault, and the lack of importance of the hearsay statements to the prosecution's case, the impact these inadmissible statements had on the jury was insignificant, and this error appears to be "so unimportant and insignificant" that it is to be deemed harmless since the admission of the hearsay statements did not contribute to the defendant's guilty verdict. People v. Harris, 43 P.3d 221 (Colo. 2002). Trial court committed no reversible error in admitting the transcribed testimony of three police officers in retrial of defendant whose previous conviction was overturned because defendant did not waive his right to be present during trial conducted in his absence. The officers did not present identification testimony, their testimony was cumulative and corroborative of eyewitness testimony concerning line-up procedures and the preparation of a composite drawing, and eyewitness testimony was overwhelming evidence of guilt. People v. Campbell, 885 P.2d 327 (Colo. App. 1994). No per se rule that out-of-court inculpatory statements made by complicitors in custody are inadmissible against criminal defendants, but rather the court should have applied the two-part test established in Ohio v. Roberts, 448 U.S. 56 (1980) on a case by case basis. People v. Drake, 785 P.2d 1253 (Colo. 1989). If an out-of-court inculpatory statement inculpates a person other than the declarant, it must also be demonstrated, by a preponderance of the evidence, that attendant circumstances confirm the statement's trustworthiness. People v. Newton, 940 P.2d 1065 (Colo. App. 1996), aff'd, 966 P.2d 563 (Colo. 1998). The hearsay exception for declarations against interest by an unavailable witness is not well-established; however, while a confession by a hired hit man was not admissible on this ground against the defendant who hired him, it was admissible because, considering the totality of the circumstances, it contained adequate guarantees of trustworthiness since it was genuinely self-inculpatory and was not coerced or motivated by expectations of leniency. Stevens v. People, 29 P.3d 305 (Colo. 2001) (applying Lilly v. Virginia, 527 U.S. 116 (1999) and Ohio v. Roberts, 448 U.S. 56 (1980)). When a statement is offered to exculpate an accused under (b)(3), the court must first determine whether the statement complies with the rule and secondly must determine whether the admission of the statement violates the defendant's right to confrontation. In determining whether the statement complies with the rule, the people must show by a preponderance of the evidence that corroborating circumstances demonstrate the trustworthiness of the statement. People v. Newton, 966 P.2d 563 (Colo. 1998). When admissible the trial court should admit all statements related to the precise statement against penal interest subject to two limits: Statements that are so self-serving as to be unreliable and statements made to curry favorable treatment should be excluded. People v. Newton, 966 P.2d 563 (Colo. 1998). When a statement is offered to inculpate an accused under section (b)(3), three elements must be satisfied. First, the witness must be unavailable; second, the statement must tend to subject the declarant to criminal liability; and, third, the people must show by a preponderance of evidence that corroborating circumstances demonstrate the trustworthiness of the statement. In assessing the third criteria, the court should limit its inquiry to the circumstances surrounding the making of the statement and not rely on other independent evidence. Appropriate factors for the court to consider are: Where and when the statement was made; to whom the statement was made; what prompted the statement; how the statement was made; what the statement contained; the nature and character of the statement; the relationship between the parties to the statement; the declarant's probable motivations for making the statement; and the circumstances under which the statement was made. The most important determination is whether the statement is genuinely self-inculpatory or whether it shifts the blame to the defendant. Bernal v. People, 44 P.3d 184 (Colo. 2002). There is a three-part test to determine whether a statement inculpating a defendant may be admitted under (b)(3) and will satisfy the Colorado and United States Constitutions: (1) The witness must be unavailable; (2) the statement must tend to subject the declarant to criminal liability and be of a kind that a reasonable person in the declarant's position would not have made unless the person believed it to be true; and (3) corroborating circumstances at the time the statement was made must demonstrate the trustworthiness of the statement. People v. Jensen, 55 P.3d 135 (Colo. App. 2001). In the third part of the test, the court should consider when and where the statement was made, what prompted the statement, how the statement was made, and the substance of the statement. People v. Jensen, 55 P.3d 135 (Colo. App. 2001). Statements against penal interest made by a codefendant to an accomplice are admissible where the accomplice testifies about such statements in court and is subject to cross-examination, and whose own credibility was a question for the jury to determine. People v. Jensen, 55 P.3d 135 (Colo. App. 2001). Child victims were found medically unavailable to testify at sexual abuse trial; therefore, videotapes of their depositions were admitted pursuant to § 18-3-413(4). Thomas v. Guenther, 754 F. Supp. 833 (D. Colo. 1990). Both § 13-25-129 and this rule are residuary rules and apply only if hearsay is not otherwise admissible under other hearsay exceptions. Section 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. Bowers, 801 P.2d 511 (Colo. 1990). Defendant's right to cross-examination at trial was not violated where, although defendant could not cross-examine the witness at trial because the witness died shortly after direct examination, the witness' deposition, at which he was cross-examined by the defendant, was read into the trial record and the direct examination did not raise any issues which were not covered in the deposition. Van Schaack v. Van Schaack Holdings, Ltd., 856 P.2d 15 (Colo. App. 1992). It is neither appropriate nor necessary for the attorney making the objection to hearsay to identify and describe every hearsay exception and to argue against their applicability. The proponent of the hearsay statements has the burden to establish the foundation for admitting the statements under an exception to the hearsay rule. Blecha v. People, 962 P.2d 931 (Colo. 1998). Applied in People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 1983); People v. Raffaelli, 701 P.2d 881 (Colo. App. 1985); People v. Buhrle, 744 P.2d 747 (Colo. 1987); People v. Chambers, 749 P.2d 984 (Colo. App. 1987).