CRE 402

History

ANNOTATION Law reviews. For article, ‘‘A Deposition Primer, Part II: At the Deposition’’, see 11 Colo. Law. 1215 (1982). For article, ‘‘The Admissibil- ity of Hypnotically Refreshed Testimony in Criminal Cases’’, see 12 Colo. Law, 600 (1983). For casenote, ‘‘People v. Quintana: How ’Pro- bative’ Is This Colorado Decision Excluding Evidence of Post-Arrest Silence?’’, see 56 U. Colo. L. Rev. 157 (1984). For article, ‘‘Tips for Working With Evidence in Domestic Relations Cases’’, see 31 Colo. Law. 87 (June 2002). Admissibility of relevant evidence. If evi- dence is relevant, it is admissible, unless its prejudicial effect outweighs its probative value. People v. Ortega, 672 P.2d 215 (Colo. App. 1983). Determination of relevance within trial court’s discretion. The determination of whether proffered evidence is relevant is within the sound discretion of the trial court; and, if the evidence has probative value in determining the central issue in dispute, the trial court’s decision will not be reversed unless it is shown that there was an abuse of discretion. People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. Schwartz, 678 P.2d 1000 (Colo. 1984); People v. McKeehan, 732 P.2d 1238 (Colo. App. 1986), cert. denied, 753 P.2d 243 (Colo. 1988); Cherry Creek Sch. Dist. v. V oelker, 859 P.2d 805 (Colo. 1993). Defendant made no showing that his theory had attained the degree of reliability which would warrant its admission at trial and the determination here of whether the tendered tes- timony was relevant and not speculative were matters within the discretion of the trial court. People v. Wilson, 678 P.2d 1024 (Colo. App. 1983), cert. denied, 469 U.S. 843, 105 S. Ct. 148, 83 L. Ed. 2d 87 (1984). It is within the special province and compe- tence of the trial court to determine the rel- evance of evidence at trial. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982). A trial court abuses its discretion in exclud- ing relevant evidence only if it makes a decision that is manifestly arbitrary, unreasonable, or un- fair. People v. McCoy, 944 P.2d 577 (Colo. App. 1996); People v. Harris, 43 P.3d 221 (Colo. 2002). Trial court’s discretion to determine rel- evancy is broad. People v. Gutierrez, 1 P.3d 241 (Colo. App. 1999). Issues concerning alleged deficiencies in the chain of custody go to the weight rather than the admissibility of evidence. People v. Gomez, 632 P.2d 586 (Colo. 1981), cert. de- nied, 455 U.S. 943, 102 S. Ct. 1439, 71 L. Ed. 2d 655 (1982); People v. Moltrer, 893 P.2d 1331 (Colo. App. 1994). Evidence properly excluded where it has no direct connection with charged crime. While evidence may be relevant to some degree concerning the defendant’s theory that other persons committed the crime, it is properly ex- cluded where it has no direct connection with the crime of which the defendant is charged. People v. White, 632 P.2d 609 (Colo. App. 1981). Admission or exclusion of evidence of an experiment rests largely in the discretion of the trial court. People v. McCombs, 629 P.2d 1088 (Colo. App. 1981). Conditions under which an experiment is conducted are required to be substantially simi- lar to those existing at the time of the occur- rence; however, this requirement does not ren- der an experiment inadmissible because it is based on a disputed reconstruction of that crime. People v. McCombs, 629 P.2d 1088 (Colo. App. 1981). Admission of allegedly prejudicial photo- graph not error if probative. Where an alleg- edly prejudicial photograph is probative with respect to a trial’s pivotal issue, its admission into evidence is not error. People v. Harris, 633 P.2d 1095 (Colo. App. 1981). Polygraph evidence inadmissible. Evidence of polygraph test results and testimony of poly- graph examiners is per se inadmissible in a criminal trial. People v. Anderson, 637 P.2d 354 (Colo. 1981). Hypnotically refreshed testimony is inad- missible. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982); People v. Rex, 689 P.2d 669 (Colo. App. 1984). A jury’s ability to observe a witness’ de- meanor and analyze a witness’ ability to per- ceive, remember, and articulate is so hampered by the hypnotic process that the probative value of such evidence cannot overcome its flaws. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982). From time of hypnosis forward. Testimony of a witness who has been questioned under hypnosis is per se inadmissible as to his recol- lections from the time of the hypnotic session forward. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982). Recorded pre-hypnosis recollections ad- missible. However, the witness is not incompe- tent to testify to pre-hypnosis recollections that have previously been unequivocally disclosed and recorded by tape recording, video tape, or by written statement. People v. Quintanar, 659 P.2d 710 (Colo. App. 1982). Evidence gained from a hypnotic trance should be excluded. People v. Diaz, 644 P.2d 71 (Colo. App. 1981). Evidence gained in hypnotic state held properly excluded. People in Interest of M.S.H., 656 P.2d 1294 (Colo. 1983). Admissibility of identification testimony. People v. Gonzales, 631 P.2d 1170 (Colo. App. 1981). Use of alias to prove prior convictions and for sentencing as an habitual criminal is rel- evant to the crime charged. People v. Talley, 677 P.2d 394 (Colo. App. 1983). Evidence of use of aliases is admissible if proof of an alias is relevant to an issue before the court. People v. DeHerrera, 680 P.2d 848 (Colo. 1984). The court did not abuse its discretion in denying the defendant’s motion for a mistrial on the basis that the court allowed cumula- tive evidence of the defendant’s flight to be admitted into evidence. Even though the pros- ecution elicited testimony during cross-exami- nation that the defendant was living under an assumed name, without establishing the rel- evance of the evidence as instructed by the court, the court issued a curative instruction to counter any unfair prejudice to the defendant. People v. Baca, 852 P.2d 1302 (Colo. App. 1992). Court did not err in failing to declare a mistrial sua sponte after expert witness gave opinion testimony as to the truth of child victim’s allegation. A curative instruction is generally sufficient to overcome an evidentiary error and is insufficient only when the evidence is so prejudicial that, but for its exposure, the jury might not have found defendant guilty. People v. Anderson, 183 P.3d 649 (Colo. App. 2007). To resolve an issue of relevancy, a court must determine whether proffered evidence re- lates to a fact that is of consequence to determi- nation of action, whether evidence makes exis- tence of a consequential fact more probable or less probable than it would be without such evidence, and whether probative value of evi- dence is substantially outweighed by danger of unfair prejudice. People v. Carlson, 712 P.2d 1018 (Colo. 1986). Alleged murder victim’s statements made shortly after alleged perpetrator had beaten or threatened to kill the victim are admis- sible in a prosecution of the alleged perpetrator for murdering the victim. People v. Hulsing, 825 P.2d 1027 (Colo. App. 1991). Admission of statements by witnesses com- menting on other witnesses’ veracity not er- ror where comments were elicited to explain police officers’ investigative techniques and to rebut defense arguments. People v. Davis, 312 P.3d 193 (Colo. App. 2010), aff’d, 2013 CO 57, 310 P.3d 58 (Colo. 2013). A law enforcement officer may testify about the officer’s assessments of interviewee credibility when that testimony is offered to provide context for the officer’s interrogation tactics. People v. Conyac, 2014 COA 8M, 361 P.3d 1005. Officer’s testimony not improper commen- tary on defendant’s credibility, but instead an explanation of officer’s interview tactics that were brought into question by defendant’s alle- gation that confession was coerced and a prod- uct of what defendant believed police wanted to hear. People v. Conyac, 2014 COA 8M, 361 P.3d 1005. Thermostat manufactured two years after the thermostat at issue that carried the same model number and functioned and operated the same way but that had a component part that was not crimped as was the one at issue was properly admitted into evidence against the manufacturer since it was admitted after the manufacturer’s expert conceded in voir dire that the only significant difference was the ab- sence of crimping, which, he testified, would not affect the high end of the temperature range. Simon v. Coppola, 876 P.2d 10 (Colo. App. 1993). Log of the results of final inspections of thermostats of the same model as the one at issue that were manufactured from one year before the model at issue to three years after and that showed that, one year after, a lot of 200 thermostats had been rejected because the crimp was too big in the component part at issue was properly admitted into evidence against the manufacturer where the trial court concluded the log ‘‘cut both ways’’ because it showed not only that the manufacturer’s quality control program had discovered the problem but also the potential for error in the manufacturing process. The court also concluded that the log would help the jury better understand the manu- facturing process. Simon v. Coppola, 876 P.2d 10 (Colo. App. 1993). Admission of three weapons and holster not error since evidence was given connecting one of the weapons and holster to the robbery charged and since all weapons were similar to weapon used in robbery. People v. Ridenour, 878 P. 2d 23 (Colo. App. 1994). Photographs of child sexual assault victims at the ages when the alleged crimes or abuse started were relevant to illustrate the chil- dren’s age at the time. There was no abuse of discretion in admitting the photographs even if there was no dispute regarding the ages of the alleged victims. People v. Herrera, 2012 COA 13, 272 P.3d 1158. In sexual assault case, evidence of defen- dant’s statements that ‘‘Mexicans were bred for sex’’ and Spanish-English dictionaries containing underlined words of a sexual and reproductive nature were relevant to issue of whether defendant knowingly caused submis- sion of Mexican national victims. People v. Braley, 879 P.2d 410 (Colo. App. 1993). Evidence that defendant refused to consent to search of apartment was relevant and not unfairly prejudicial to impeach his testimony that he had not lived in the apartment for the last six days and did not know there were drugs in the apartment. Evidence of refusal to consent to search could give rise to the reasonable infer- ence that the defendant had dominion and con- trol over the apartment. People v. Chavez, 190 P.3d 760 (Colo. App. 2007). Evidence irrelevant where no logical rela- tion to contested issues at trial. In arson case, underlying reasons for insurance company’s re- fusal of coverage had no logical relation to any motive defendant may have had prior to fire nor probative of any elements of the crime charged and was irrelevant. People v. Carlson, 677 P.2d 390 (Colo. App. 1983), aff’d, 712 P.2d 1018 (Colo. 1986). Testimony that defendant had been dis- charged from his job after the incident was inadmissible, since such act had no relevance to any contested issue. People v. Jones, 743 P.2d 44 (Colo. App. 1987). Evidence of theft defendant’s civil suit against victims was properly excluded as irrel- evant where no prosecution witnesses were named parties in civil suit, and suit referred to dispute with victims at time defendant was dis- charged from victim’s employment, and thus could not contradict or negate defendant’s state of mind at time of commission of thefts. People v. Stowers, 728 P.2d 356 (Colo. App. 1986). Evidence that a mother refused voluntary drug testing for herself and her child and to stop breastfeeding pending a drug test at a case- worker’s request prior to the filing of the depen- dency and neglect petition irrelevant. The evi- dence lacked probative value because her refusal in both instances could reasonably be attributed to a variety of innocent circum- stances. People in Interest of M.H-K., 2018 COA 178, 433 P.3d 627. When admission of irrelevant evidence constitutes abuse of discretion and reversible error. Admission of irrelevant evidence is not necessarily reversible error. But where such evi- dence contributes to conviction of defendant, it is reversible error and abuse of trial court’s wide discretion in determining relevancy of evi- dence. People v. Carlson, 677 P.2d 390 (Colo. App. 1983), aff’d, 712 P.2d 1018 (Colo. 1986). Evidence excluded as irrelevant. People v. Loscutoff, 661 P.2d 274 (Colo. 1983). Although evidence of a defendant’s com- pliance with applicable industry standards in a tort case is both relevant and admissible for purposes of determining whether the defendant either breached or satisfied the duty of care it owed to an injured plaintiff, such evidence is not conclusive on the issue of due care. Y ampa V alley Elec. v. Telecky, 862 P.2d 252 (Colo. 1993). Electrical utility was not entitled to a jury instruction creating a rebuttable presump- tion that adherence to industry standards pre- sumes compliance with ‘‘accepted good engi- neering practice in the electric industry’’, since whether the utility complied with accepted good engineering practices, or whether it exercised due care is best determined by the jury after it has examined the relevant evidence and been properly instructed concerning the effect of the utility’s compliance with the industry’s mini- mum standards. Y ampa V alley Elec. v. Telecky, 862 P.2d 252 (Colo. 1993). Because property assessors are now consti- tutionally required to determine the actual or market value of property with an ap- praisal using the market approach, property tax assessments are relevant evidence of the value of real property. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007). Applied in People v. District Court, 652 P.2d 582 (Colo. 1982); People v. McGhee, 677 P.2d 419 (Colo. App. 1983); People v. Dunlap, 975 P.2d 723 (Colo. 1999), cert. denied, 528 U.S. 893, 120 S. Ct. 221, 145 L. Ed. 2d 186 (1999).