CRE 601

History

COMMITTEE COMMENT The present rule preserves the general Colo- rado rule under § 13-90-101, et seq., C.R.S.; and the exceptions listed in §§ 13-90-102 through 13-90-108. ANNOTATION Law reviews. For article ‘‘The Child Wit- ness’’, see 22 Colo. Law. 1201 (1993). Determination within trial court’s discre- tion. Determination of the competency of a witness is a matter within the trial court’s dis- cretion. People v. District Court, 647 P.2d 1206 (Colo. 1982). Testimonial incapacity due to age is not a bar to admission of a hearsay statement which would otherwise be admissible in evidence as res gestae. People v. Roark, 643 P.2d 756 (Colo. 1982). Witness presumed competent when never adjudicated insane. People v. Galloway, 677 P.2d 1380 (Colo. App. 1983). A witness’s intoxication, alone, is not suffi- cient to determine that the witness is incom- petent to testify. There is nothing in the record that indicated the witness lacked the capacity to observe, recollect, communicate, and under- stand the oath to tell the truth. The witness was thoroughly cross-examined by defense counsel and the court informed the jury of the witness’s intoxication status. There was no error in allow- ing the witness’s testimony. People v. Alley, 232 P.3d 272 (Colo. App. 2010). Further, a witness’s intoxication, alone, does not require the court to conduct a com- petency hearing. The court has wide latitude to determine whether to admit an intoxicated wit- ness’s testimony and it is the jury’s role to determine the witness’s credibility. People v. Alley, 232 P.3d 272 (Colo. App. 2010). Procedures for cases involving posthyp- notic testimony are as follows: (1) Party in- tending to elicit such testimony at trial should timely advise opposing party of that fact and make available for inspection any records deal- ing with the hypnosis sessions. (2) The propo- nent of the testimony bears the burden of estab- lishing the reliability of such testimony whenever a challenge is made to its admissibil- ity. (3) The preponderance of evidence is the suitable standard for resolving this issue. 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). Hypnotized witness competent to testify to statements made prior to hypnosis if there is an accurate record of prehypnotic recollection which helps insure reliability. People v. Angelini, 706 P.2d 2 (Colo. App. 1985). Posthypnotic testimony. Trial courts must make an individualized inquiry in each case to determine whether the trial testimony of a wit- ness who has been hypnotized will be suffi- ciently reliable to qualify for admission. This rule is incompatible with either a per se rule of admissibility or a per se rule of inadmissibility. To the extent that People v. Quintanar, 659 P.2d 710 (Colo. App. 1982), adopts such a per se rule of inadmissibility, it is expressly overruled. 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). The central inquiry at a challenge to admissi- bility is whether, notwithstanding the events occurring during the hypnosis session, the wit- ness’ trial testimony will be sufficiently reliable to be admissible. The trial court should consider the totality of circumstances bearing on the is- sue of reliability and should make adequate findings so as to permit meaningful appellate review. 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). Witness who has been hypnotically relaxed without questioning or suggestion has not thereby been rendered incompetent to testify, although evidence of relaxation technique may be used to impeach witness’ credibility. People v. McKeehan, 732 P.2d 1238 (Colo. App. 1986), cert. denied, 753 P.2d 243 (Colo. 1988). Applied in Wise v. Hillman, 625 P.2d 364 (Colo. 1981).