Colo. R. Evid. 104
(Federal Rule Identical.)
CRE 104
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, "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). The prosecution should be required to establish the foundational requirements for the admission of a co-conspirator's statement prior to any offer of the statement into evidence before the jury. People v. Montoya, 753 P.2d 729 (Colo. 1988). A court's ruling on the admissibility of a co-conspirator's statement should normally be made during the presentation of the prosecution's case in chief, before the challenged statement is actually heard by the jury. People v. Montoya, 753 P.2d 729 (Colo. 1988). There is no per se rule against conducting a child competency hearing in front of the jury, but the better practice is to excuse the jury. The defendant was not prejudiced by holding the hearing in front of the jury. People v. Wittrein, 221 P.3d 1076 (Colo. 2009). Judge, not jury, determines admissibility of evidence. The trial judge, rather than a jury, is the proper judicial functionary to determine the admissibility of evidence. People v. Sanchez, 180 Colo. 119, 503 P.2d 619 (1972). The preponderance of evidence standard is the traditional standard applicable to the resolution of most preliminary questions of admissibility. People v. Montoya, 753 P.2d 729 (Colo. 1988); People v. Garner, 806 P.2d 366 (Colo. 1991); People v. Groves, 854 P.2d 1310 (Colo. App. 1992). Whether inculpatory statements contained in a police officer's written statement were made and were made voluntarily is a preliminary matter to be decided by the judge under section (a). When evidence indicates that defendant signed a blank statement that was later filled in by the police officer, the court must first determine whether the defendant made the statements. People v. Gay, 24 P.3d 624 (Colo. App. 2000). Even if the evidence is ruled inadmissible, the court has no authority to dismiss criminal charges solely upon the basis of its evidentiary ruling. People v. Montoya, 753 P.2d 729 (Colo. 1988). The trial court determines the qualification of witnesses and has discretion to admit expert testimony. Eggert v. Mosler Safe Co., 730 P.2d 895 (Colo. App. 1986); People v. Williams, 790 P.2d 796 (Colo. 1990). Credibility of witnesses is for jury to determine, which may accept or reject all or part of a witness's testimony. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973); People v. Garner, 187 Colo. 294, 530 P.2d 496 (1975). It is the function of a jury to assess the credibility of witnesses. People v. Saavedra, 184 Colo. 90, 518 P.2d 283 (1974). The credibility of the witnesses is a matter for the jury's determination. People v. Hodge, 186 Colo. 189, 526 P.2d 309 (1974); Eggert v. Mosler Safe Co., 730 P.2d 895 (Colo. App. 1986). It is axiomatic that the jury is the sole judge of the credibility of the witnesses. People v. Barker, 189 Colo. 148, 538 P.2d 109 (1975). Weight to be given witnesses' testimony a matter for the jury's determination. Where a prima facie case is properly made, the jury is the trier of fact and the judge of the credibility of the witnesses and of the weight to be given their testimony. People v. Prante, 177 Colo. 243, 493 P.2d 1083 (1972); Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972). Where there is no error in the court's initial ruling on the qualifications of a witness, his credibility and the weight to be given to his testimony is a jury question. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972). The credibility of the witnesses and the weight to be given to their testimony is a matter for the jury's determination. Salas v. People, 181 Colo. 321, 509 P.2d 586 (1973); People v. O'Donnell, 184 Colo. 434, 521 P.2d 771 (1974). It was within the province of the trial court to weigh the testimony of witnesses, including expert witnesses, in determining the factual question of whether the defendant was or was not hypnotized. People v. Romero, 745 P.2d 1003 (Colo. 1987), cert. denied, 485 U.S. 990, 108 S. Ct. 1296, 99 L. Ed. 2d 506 (1988). Where evidence is conflicting, it is function of the jury to determine truth. Taylor v. People, 176 Colo. 316, 490 P.2d 292 (1971). It is the function of a jury to resolve conflicts in the evidence. People v. Saavedra, 184 Colo. 90, 518 P.2d 283 (1974). It is the jury's function to weigh disputed evidence and to resolve the conflicts. People v. Jiminez, 187 Colo. 97, 528 P.2d 913 (1974). Jury determines whether irreconcilable testimony requires corroboration. Where two versions are clearly irreconcilable, it is for the jury, not the judge, to determine whether the testimony of a witness requires corroboration. Davis v. People, 176 Colo. 378, 490 P.2d 948 (1971). Error for court to strike blatantly inconsistent testimony. Where testimony is so blatantly inconsistent as to be unworthy of belief, it would be error for the trial court to strike the testimony on the ground that there are inconsistencies in the testimony, because the weight to be given the testimony, even though inconsistent, is for the jury. People v. Moreno, 181 Colo. 106, 507 P.2d 857 (1973). Policy behind section (b) is to allow some flexibility in the order of proof, in order to avoid undue delay and confusion. People v. Lyle, 200 Colo. 236, 613 P.2d 896 (1980). In determining admissibility of other-crime evidence, trial court is required to consider all evidence in the case pursuant to subsection (a) of this rule. People v. Garner, 806 P.2d 366 (Colo. 1991); People v. Groves, 845 P.2d 1310 (Colo. App. 1992). Trial court erred in not admitting, as conditionally relevant evidence pursuant to section (b) of this rule, testimony of a wife as to admissions made by the wife's spouse about the fraudulent nature of his personal injury claim against his employer even though there was an issue about whether the admission was actually made by the spouse or based on the wife's dream. The proper analysis by the court in determining the admissibility of the wife's testimony should have been whether the jury could reasonably find by a preponderance of the evidence that the conditional fact, i.e. that the spouse made such statement, has been established. Northern R. Co. v. Hood, 802 P.2d 458 (Colo. 1990). C.R.E. 602, requiring personal knowledge of a witness, is a specialized application of section (b) of this rule regarding conditionally relevant evidence. In a personal injury case by a husband against his employer, the question of whether the husband's spouse had personal knowledge as to the husband's admissions regarding the fraudulent nature of his claim was for the jury to determine in accordance with section (b) this rule. Burlington Northern R. Co. v. Hood, 802 P.2d 458 (Colo. 1990). Although the court precludes the admission of character evidence for the purpose of proving an act in conformance with such character, similar crime evidence is admissible for purposes of proving motive, opportunity, absence of mistake, or accident. People v. Groves, 854 P.2d 1310 (Colo. App. 1992). Prior to admission of the evidence permitted by section (b) of this rule, the court must be satisfied by a preponderance of the evidence that: (1) The evidence relates to a material fact; (2) the evidence is logically relevant and tends to make the existence of the material fact more or less probable than it would be without the evidence; (3) its logical relevance is independent of the prohibited inference that the defendant was a bad character; and (4) its probative value outweighs the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314 (Colo. 1990); People v. Garner, 806 P.2d 366 (Colo. 1991); People v. Groves, 854 P.2d 1310 (Colo. App. 1992); People v. Duncan, 33 P.3d 1180 (Colo. App. 2001). Court's refusal to permit defendant to call prosecutor as witness not abuse of discretion where expected testimony related only to alleged discovery violations and not defendant's guilt or innocence. People v. Perryman, 859 P.2d 263 (Colo. App. 1993). In absence of defendant's testimony the trial court must determine if there was a Miranda violation by weighing the credibility of witnesses. It is not a constitutional requirement that inconsistencies be resolved in the defendant's favor. People v. Turtura, 921 P.2d 40 (Colo. 1996). Defendant's incriminating statements were obtained in violation of his Miranda rights, and trial court's order to suppress the statements was appropriate. A reasonable person in defendant's circumstances would have felt deprived of his or her freedom of action in a manner similar to a formal arrest. Therefore, defendant was in custody and subject to interrogation without being advised of his Miranda rights. People v. Holt, 233 P.3d 1194 (Colo. 2010). Testing performed by Colorado bureau of investigation on listening device found in bar restroom did not alter the "character" of device and render it inadmissible in criminal eavesdropping prosecution but was simply a circumstance for jury to consider in weighing the evidence. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). Trial court did not abuse its discretion by excluding testimony of defendant's sister because there were not sufficient guarantees of trustworthiness. People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002). Applied in Hendershott v. People, 653 P.2d 385 (Colo. 1982); People v. Taylor, 804 P.2d 196 (Colo. App. 1990).