C.R.C.P. 43

History

Source: (a) amended, (b), (c), (d), (f), (g), and (h) repealed, and (i) added March 17, 1994, effective July 1, 1994; (i) amended and adopted October 20, 2005, effective January 1, 2006. Cross references: For general provisions concerning evidence and witnesses, see article 25 of title 13, C.R.S. and part 1 of article 90 of title 13, C.R.S.; for rights of examination of party in interest by adverse party, see § 13-90-116, C.R.S.; for costs, see C.R.C.P. 54(d); for admissibility of evidence of lost instruments, see § 13-25-113, C.R.S.; for admissibility of copies of lost instruments and records, see §§ 24-72-101 and 24-72-111, C.R.S.; for admissibility of copies of documents kept by county officers, see § 30-10-103, C.R.S. ANNOTATION I. General Consideration. II. Form and Admissibility. III. Evidence on Motions. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Trials: Rules 38- 53’’, see 23 Rocky Mt. L. Rev. 571 (1951). For article, ‘‘A Deposition Primer, Part I: Setting Up the Deposition’’, see 11 Colo. Law. 938 (1982). For article, ‘‘2006 Amendments to the Civil Rules: Modernization, New Math, and Polishing’’, see 35 Colo. Law. 21 (May 2006). The plaintiff always has the burden of proving his or her case. Lockwood v. Travel- ers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972). Once a ‘‘prima facie’’ case is established, the burden of going forward to rebut the ‘‘prima facie’’ case shifts to the defendant. Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972). The burden of going forward is met when the defendant introduces enough evidence to present a jury question where formerly there was a ‘‘prima facie’’ case. Lockwood v. Travel- ers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972). Lack of direct testimony as to cause of action is not necessarily fatal to plaintiff’s case, as causation may be shown by circum- stantial evidence alone and jurors may draw upon ordinary human experience as to the rea- sonable probabilities. Irish v. Mountain States Tel. & Tel. Co., 31 Colo. App. 89, 500 P.2d 151 (1972). To recover loss of profits, the plaintiff not only has to establish the existence of such loss but also has to provide evidence from which such loss could be computed. Irish v. Mountain States Tel. & Tel. Co., 31 Colo. App. 89, 500 P.2d 151 (1972). When the ‘‘accident-suicide’’ dichotomy is placed in issue by the pleadings and by rebut- table presumption, the plaintiff has the burden of proving accident to the exclusion of suicide by a preponderance of the evidence. Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972). Applied in Keefe v. Bekins V an & Storage Co., 36 Colo. App. 382, 540 P.2d 1132 (1975); Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978); Berger v. Coon, 199 Colo. 133, 606 P.2d 68 (1980); People in Interest of M.W., 2022 COA 72, 518 P.3d 1132. II. FORM AND ADMISSIBILITY. Colorado favors the admissibility and not the rejection of evidence in civil actions in accordance with the most convenient methods prescribed by statute and the rules of evidence. Dept. of Highways, v. Intermountain Term. Co., 164 Colo. 354, 435 P.2d 391 (1967). All evidence admissible under federal stat- utes applies in state court. Powell v. Brady, 30 Colo. App. 406, 496 P.2d 328 (1972), aff’d, 181 Colo. 218, 508 P.2d 1254 (1973). The applicability of the federal business act (28 U.S.C. § 1732) to hospital records has been firmly established. Powell v. Brady, 30 Colo. App. 406, 496 P.2d 328 (1972), aff’d, 181 Colo. 218, 508 P.2d 1254 (1973). Hospital records are ordinarily admissible under section (a) of this rule. Good v. A.B. Chance Co., 39 Colo. App. 70, 565 P.2d 217 (1977). The admission of hospital records requires that they be relevant to the issues. Good v. A.B. Chance Co., 39 Colo. App. 70, 565 P.2d 217 (1977). The sufficiency, probative effect, and weight of all evidence, including documen- tary evidence, and the inferences and conclu- sions to be drawn therefrom are all within the province of the trial court, whose conclu- sions will not be disturbed unless so clearly erroneous as to find no support in the record. Dominion Ins. Co. v. Hart, 178 Colo. 451, 498 P.2d 1138 (1972); Jones v. Adkins, 34 Colo. App. 196, 526 P.2d 153 (1974). Evidence will be viewed on appeal in the light most favorable to upholding the judg- ment. Hayes v. State, 178 Colo. 447, 498 P.2d 1119 (1972). Where an insurance company attempted to introduce evidence concerning other insur- ance policies owned by the decedent before his death, the trial court must weigh the prejudicial effect of such evidence against its relevancy to the issue of whether the death was accidental or suicidal, and where, at a hearing before the judge outside the presence of the jury, the insur- ance company informed the court that the poli- cies were at least three years old at the time of decedent’s death, the probative value of such evidence was virtually nonexistent, so that the discretionary decision of the trial court to ex- clude this evidence as irrelevant and potentially prejudicial was not error. Simonton v. Continen- tal Cas. Co., 32 Colo. App. 138, 507 P.2d 1132 (1973). Evidence of testamentary capacity held properly received outside presence of jury. In re Estate of Gardner, 31 Colo. App. 361, 505 P.2d 50 (1972). Considerations of credibility of witnesses and the weight to be accorded their testi- mony are for the trial court. Hayes v. State, 178 Colo. 447, 498 P.2d 1119 (1972). Trial court shall determine whether wit- ness has the right to express an opinion. The sufficiency of the evidence to establish the qualifications and knowledge of a witness to entitle him to express an opinion is a question to be determined by the trial court, and its decision will be upheld unless clearly errone- ous. Oglesby v. Conger, 31 Colo. App. 504, 507 P.2d 883 (1972). Determination of the pertinency of omitted facts from a hypothetical question to a wit- ness rests in the discretion of the trial court and will not be reversed unless clearly erroneous. Oglesby v. Conger, 31 Colo. App. 504, 507 P.2d 883 (1972). Where a witness has no personal knowl- edge of a fact, he should not be allowed to give testimony concerning that fact because there would then be reliance on the out-of-court declaration of another and the normal safe- guards of oath, confrontation, and cross-exami- nation would be precluded. Simonton v. Conti- nental Cas. Co., 32 Colo. App. 138, 507 P.2d 1132 (1973). It is within the discretion of the trial court to determine the competence of an expert witness to testify. Martin v. Bralliar, 36 Colo. App. 254, 540 P.2d 1118 (1975). Expert opinion is permissible only where a proper foundation is laid. Simpson v. Ander- son, 186 Colo. 163, 526 P.2d 298 (1974). Trial judge should decide whether witness is a qualified expert on subject appropriate for expert testimony, but basis of his opinion and weight to be given opinion should be left for advocates to challenge and for jury to deter- mine. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). Evidence of opinion of experts is admis- sible only when subject matter of contro- versy renders it necessary or proper to resort to opinion evidence. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). In admitting the testimony of a medical witness on the issue of standard of care, there is no abuse of discretion when the evidence shows that the proposed witness is familiar with the standard of care in the same or similar communities at the time in question. Martin v. Bralliar, 36 Colo. App. 254, 540 P.2d 1118 (1975). Where expert opinion is based on evidence adduced at trial which is hearsay, it is error to include it. Nat’l State Bank v. Brayman, 180 Colo. 304, 505 P.2d 11 (1973). Where an accident-reconstruction expert offers testimony, such evidence is admissible where based on photographs properly admit- ted even though expert had failed to personally examine scene of accident and vehicles in- volved within short time after accident. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). The sufficiency of evidence qualifying a law enforcement officer to express an expert opinion based upon physical facts he has ob- served is a question to be determined by the trial court, and its decision will be upheld un- less clearly erroneous. Nat’l State Bank v. Brayman, 30 Colo. App. 554, 497 P.2d 710 (1972), rev’d on other grounds, 180 Colo. 305, 505 P.2d 11 (1973). Where witness is officer who conducted investigation of scene of accident minutes af- ter accident is an expert as to point of impact and the extent of movement of vehicles is fully testified to by competent witness before offi- cer’s opinion is illicited, officer’s testimony as to point of impact should be admitted despite absence of skid marks and fact that prior to officer’s arrival at scene, automobiles had been moved slightly. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). Facts supporting only conjectural infer- ences have no probative value and should not be admitted in evidence. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). Where the owner is an occupant of his own vehicle at the time of an accident, it is ‘‘prima facie’’ evidence that he was the driver. Brayman v. Nat’l State Bank of Boulder, 180 Colo. 305, 505 P.2d 11 (1973). Replicas of physical evidence usually ad- missible. While replicas of physical evidence are usually admissible where the original item has been lost or destroyed, the admissibility of such evidence is a matter within the discretion of the trial judge. Reaves v. Horton, 33 Colo. App. 186, 518 P.2d 1380 (1973), modified, 186 Colo. 149, 526 P.2d 304 (1974). Where a written document is a complete and accurate expression of the agreement be- tween the parties, evidence is not admissible for the purpose of varying or contradicting the terms of the written document. Aztec Sound Corp. v. Western States Leasing Co., 32 Colo. App. 248, 510 P.2d 897 (1973). A certified copy of a death certificate is admissible and is ‘‘prima facie’’ evidence of the facts recited therein. Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947 (1972). Soil sample should not be admitted where vehicle was towed in area after accident. Where evidence in wrongful death action against motorist arising from automobile colli- sion indicates that soil taken from defendant’s automobile matches soil samples taken from parking lot, such evidence should not be admit- ted to prove that defendant’s automobile had been in parking lot before accident where, im- mediately after accident, defendant’s automo- bile had been towed through parking lot in question. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). Where a photograph of the scene of an accident taken after vehicles had been re- moved is offered to show scene of accident and not the condition of the road surface, then the wetness or dryness of road surface is not sig- nificant, and the photograph should be admitted. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). In order to warrant admission of a photo- graph in evidence, if it is otherwise competent, it is only necessary to show that it is correct likeness of objects it purports to represent, and this may be shown by person who made it or by any competent witness. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). Fact that photographic evidence may be cumulative is not alone ground for its rejec- tion. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972). Testimony properly excluded as hearsay. Where the trial court refuses to permit wit- nesses to testify to conversations with other persons concerning the knowledge of such other persons about the activities of an individual, such testimony is properly excluded as hearsay. Am. Nat’l Bank v. Quad Constr., Inc., 31 Colo. App. 373, 504 P.2d 1113 (1972). Past recollection recorded exception to hearsay rule. A determination by the trial court that a statement was made too remote in point of time to the date of an accident to be admis- sible under the past recollection recorded ex- ception to the hearsay rule was a matter resting within the discretion of the trial court and such determination will be disturbed only if the trial court abused its discretion. McCall v. Roper, 32 Colo. App. 352, 511 P.2d 541 (1973). Hearsay is admissible as evidence against the interest of a deceased. The testimony of an individual, who brings suit against the estate of a deceased for proceeds from the sale of prop- erty allegedly held in trust, to the effect that the deceased told the claimant that he was holding some property in trust for one of the claimant’s parents is hearsay but admissible as evidence against the interest of the deceased. In re Estate of Granberry, 30 Colo. App. 550, 498 P.2d 960 (1972). It is not error to admit hearsay to demon- strate intention or state of mind. Where the trial court took adequate precautions in admit- ting hearsay testimony, including instructing the jury as to the manner and purpose for which the evidence might be considered, the trial court did not err in admitting evidence of a declaration for the limited purpose of demonstrating inten- tion or state of mind. Simonton v. Continental Cas. Co., 32 Colo. App. 138, 507 P.2d 1132 (1973). A person’s intentions may be reflected by the declarations of that person, and these dec- larations are therefore admissible not for the proof of the facts stated by the declaration but to demonstrate the state of mind of the declarant; when offered for this purpose, the hearsay rule is not applicable to such a declara- tion. Simonton v. Continental Cas. Co., 32 Colo. App. 138, 507 P.2d 1132 (1973). In determining whether to admit hearsay evidence to establish state of mind, the court must make a judgment based on a weighing of the materiality and relevance of the testimony for a limited purpose against the possibility that, in spite of an instruction by the court to the contrary, the jury might consider a statement for the truth of the facts it contains. Simonton v. Continental Cas. Co., 32 Colo. App. 138, 507 P.2d 1132 (1973). Where testimony is hearsay, its admission is harmless when the essential and operative facts upon which a judgment rests are estab- lished by competent evidence in the record. San Isabel Elec. Ass’n v. Bramer, 31 Colo. App. 134, 500 P.2d 821 (1972), aff’d, 182 Colo. 15, 510 P.2d 438 (1973). Defendant could not predicate error on trial court’s denial of admission of hearsay evi- dence; since defendant made no offer of proof, it was not apparent from the context what the substance of the testimony would have been, and defense counsel made no objection to the denial. People v. Hoover, 165 P.3d 784 (Colo. App. 2006). A deed may be proven by parol evidence to be a mortgage, but the evidence must be clear, certain, and unequivocal as well as be convinc- ing beyond a reasonable doubt. Padia v. Hobbs, 132 Colo. 165, 286 P.2d 613 (1955). Admitting exhibits out of the usual order is immaterial where the objecting party is the only witness, the order of proof being in the sound discretion of the court. Shearer v. Snyder, 115 Colo. 232, 171 P.2d 663 (1946). Applied in Hamilton v. Hardy, 37 Colo. App. 375, 549 P.2d 1099 (1976). III. EVIDENCE ON MOTIONS. Trial court erred in awarding fees and ex- penses to receiver over objection of an inter- ested party, without a hearing, without any rep- resentation that fees and expenses were reasonable and necessary, and without receiving sworn testimony or verified documents. Cedar Lane Invs. v. St. Paul Fire & Marine Ins. Co., 883 P.2d 600 (Colo. App. 1994). Applied in Sollitt v. District Court, 180 Colo. 114, 502 P.2d 1108 (1972).