CRE 804

History

COMMITTEE COMMENT 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 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. (Federal Rule Identical.) COMMITTEE COMMENT 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) (prosecu- tors seeking to admit statements against the accused must satisfy the corroboration require- ment solely by reference to the circumstances surrounding its making). (Federal Rule Identical.) COMMITTEE COMMENT 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 The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to Rule 807. This was done to facilitate addi- tions to Rules 803 and 804. No change in mean- ing is intended. Source: (b)(5) added November 15, 1984, effective April 1, 1985; (b)(5) transferred to Rule 807 and (b)(5) committee comment added, effective January 1, 1999; (b)(3) and (b)(3) committee comment amended and effective January 13, 2011. ANNOTATION Law reviews. For article, ‘‘Hearsay in Crimi- nal Cases Under the Colorado Rules of Evi- dence: An Overview’’, see 50 U. Colo. L. Rev. 277 (1979). For comment, ‘‘Confrontation of Child Victim-Witnesses: Trauma, Unavailabil- ity, 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 (Sept. 1997). For article, ‘‘Lights, Camera, Action—Video Will Execu- tions’’, see 42 Colo. Law. 45 (Jan. 2013). Admitted hearsay statements against in- terest were sufficiently corroborated, satisfy- ing the state confrontation clause require- ment. People v. Beller, 2016 COA 184, 411 P.3d 1145. Unavailability under section (a)(1). In order for a declarant to be considered ‘‘unavailable’’ under section (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 defen- dant in an earlier proceeding was insufficient as a matter of law to satisfy the requirement of unavailability under section (a)(1). People v. Barnum, 23 P.3d 1237 (Colo. App. 2001), aff’d by an equally divided court, 53 P.3d 646 (Colo. 2002). Declarant-codefendant in a criminal pro- ceeding must be presumed unavailable for purposes of section (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 constitu- tional confrontation, a party offering a wit- ness’s former testimony must establish the pres- ent 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 alterna- tive 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 availabil- ity of the declarant is not his or her availabil- ity 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 an equally divided court, 53 P.3d 646 (Colo. 2002). Inability to remember prior testimony tan- tamount to denial. For the purpose of introduc- ing the prior testimony of a witness, the wit- ness’ inability to remember a statement is tantamount to a denial that he made the state- ment. People v. Baca, 633 P.2d 528 (Colo. App. 1981). Extrinsic evidence admissible to prove prior statement. Where a witness does not re- member making a prior statement, extrinsic evi- dence 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 recog- nized 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 oppor- tunity 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 dis- cretion 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 section (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 pe- nal 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 trustwor- thiness. People v. Moore, 693 P.2d 388 (Colo. App. 1984). Section (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). Section (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 circum- stances within trial court’s discretion. The examination of corroborative circumstances, in section (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 corrobo- rating circumstances exist, the examination focuses on when and to whom the statement was made, the presence or absence of corrobo- rating 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 like- lihood of him being actually prosecuted. People v. Lupton, 652 P.2d 1080 (Colo. App. 1982). In determining whether sufficient corroborat- ing circumstances exist to permit introduction of a statement against interest into evidence, the trial court must examine, among other circum- stances, when and to whom the statement is made and determine whether other independent evidence corroborates the contents of the state- ment. 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 ef- forts made to produce such declarant, which efforts are based on a standard of reasonable- ness. People v. Walters, 765 P.2d 616 (Colo. App. 1988). Test of good faith by prosecution in secur- ing 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. Hernan- dez, 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 dis- ability 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 rea- sonable 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 testi- fied 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 un- available to testify due to emotional trauma pursuant to § 18-3-413 (4) when courts find- ings 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 section (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 prerequi- sites for admissibility under section (b)(5). People v. Fuller, 788 P.2d 741 (Colo. 1990). Grand jury testimony of deceased must satisfy foundational requirements of section (b)(1) in order to be admissible. Party seeking admission of testimony must show a prior op- portunity by the party against whom the testi- mony 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 guaran- ties of trustworthiness and were properly admis- sible. People v. Meyer, 952 P.2d 774 (Colo. App. 1997). Harmless error. Trial court’s failure to es- tablish that a hearsay statement satisfied the prerequisites for admissibility under section (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 harm- less beyond a reasonable doubt, a reviewing court should consider factors including: The im- portance of witness’ testimony to the prosecu- tion’s case; whether the testimony is cumula- tive; 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 an equally divided court, 53 P.3d 646 (Colo. 2002); People v. Harris, 43 P.3d 221 (Colo. 2002). Considering the independent evidence link- ing the defendant to the crime, the persuasive corroborative evidence substantiating the vic- tim’s account of the assault, and the lack of importance of the hearsay statements to the prosecution’s case, the impact these inadmis- sible statements had on the jury was insignifi- cant, and this error appears to be ‘‘so unimport- ant 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 de- fendant did not waive his right to be present during trial conducted in his absence. The offi- cers did not present identification testimony, their testimony was cumulative and corrobora- tive of eyewitness testimony concerning line-up procedures and the preparation of a composite drawing, and eyewitness testimony was over- whelming evidence of guilt. People v. Camp- bell, 885 P.2d 327 (Colo. App. 1994). No per se rule that out-of-court inculpa- tory statements made by complicitors in cus- tody are inadmissible against criminal defen- dants, 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). The hearsay exception for declarations against interest by an unavailable witness is not well-established; however, while a confes- sion 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 ad- equate guarantees of trustworthiness since it was genuinely self-inculpatory and was not co- erced 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 section (b)(3), the court must first determine whether the statement com- plies with the rule and secondly must determine whether the admission of the statement violates the defendant’s right to confrontation. In deter- mining whether the statement complies with the rule, the people must show by a preponderance of the evidence that corroborating circum- stances demonstrate the trustworthiness of the statement. People v. Newton, 966 P.2d 563 (Colo. 1998). When admissible the trial court should ad- mit all statements related to the precise state- ment against penal interest subject to two lim- its: Statements that are so self-serving as to be unreliable and statements made to curry favor- able 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 ele- ments 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 prepon- derance of evidence that corroborating circum- stances demonstrate the trustworthiness of the statement. In assessing the third criteria, the court should limit its inquiry to the circum- stances 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 genu- inely 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 section (b)(3) and will satisfy the Colorado and United States Consti- tutions: (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 posi- tion 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 admis- sible where the accomplice testifies about such statements in court and is subject to cross-ex- amination, 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 un- available 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 residu- ary rules and apply only if hearsay is not otherwise admissible under other hearsay ex- ceptions. 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 defen- dant 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 exami- nation did not raise any issues which were not covered in the deposition. V an Schaack v. V an 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 pro- ponent 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). Failure to include the transcript of grand jury testimony on appeal makes the appellate record insufficient to determine whether the trial court abused its discretion in not admitting the grand jury testimony. People v. Clark, 2015 COA 44, 370 P.3d 197. 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).