CRE 901

History

(Federal Rule Identical.) (Federal Rule Identical.) Source: (b)(8) amended and effective March 29, 2021. 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 article, ‘‘Authentication of Pri- vate Documents By Nonexpert Witnesses’’, see 22 Colo. 2241 (1993). For article, ‘‘Authentica- tion’’, see 25 Colo. Law. 55 (Sept. 1996). For article, ‘‘Lights, Camera, Action—Video Will Executions’’, see 42 Colo. Law. 45 (Jan. 2013). For article, ‘‘The Admissibility of Facebook Communications’’, see 44 Colo. Law. 77 (July 2015). This rule contemplates a flexible, factual inquiry to determine whether a reasonable jury could determine the evidence is what the proponent claims. The trial court has broad discretion to consider a variety of factors and circumstances. People v. Gonzales, 2019 COA 30, 474 P.3d 124, aff’d, 2020 CO 71, 471 P.3d 1059 (overruling People v. Baca, 2015 COA 153, 378 P.3d 780, to the extent it holds there are two exclusive methods for authenticating a voice recording). To admit a recorded phone call, the propo- nent must establish it is an accurate record- ing of the call, or, if no witness with indepen- dent knowledge of the call’s content can verify the accuracy, the proponent must present wit- ness who can verify the reliability of the record- ing process. People v. Baca, 2015 COA 153, 378 P.3d 780, overruled in part in Gonzales v. People, 2020 CO 71, 471 P.3d 1059, annotated above. Because the defense investigator could nei- ther verify the accuracy of a recorded call’s content nor the reliability of the recording pro- cess, the court did not abuse its discretion in refusing to admit the recording. People v. Baca, 2015 COA 153, 378 P.3d 780, overruled in part in Gonzales v. People, 2020 CO 71, 471 P.3d 1059, annotated above. Taped telephone call by the defendant in which he identified himself to a detective was properly admitted under this rule and the court correctly determined that the recorded call was not included in prosecution’s stipulation that it did not intend to introduce any statements by the defendant. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990). Mere fact that a document is authentic does not mean the document is admissible as competent evidence if the document constitutes otherwise inadmissible hearsay. People v. Morise, 859 P.2d 247 (Colo. App. 1993). Trial court abused its discretion in allow- ing expert’s testimony respecting the results of her tests because the items tested by the expert were not introduced and because the ex- pert did not describe how the items she tested were marked. Thus there was no proper evi- dence establishing that the tested items came from either defendant or the victim, save for the expert’s unexplained conclusory statements. People v. V alencia, 257 P.3d 1203 (Colo. App. 2011). This rule merely establishes the require- ments for admitting an item of physical evi- dence. However, even if the item itself is not admissible under this rule, the proponent may use other methods of proof to identify the item. People ex rel. J.G., 97 P.3d 300 (Colo. App. 2004). Testimony identifying items sufficient for admission. Testimony by the investigating offi- cer identifying items seized at the scene of a crime is sufficient basis to support the admis- sion of such items into evidence, even if the officer did not initial or mark the item when it was seized, if at trial the officer identifies the exhibit as appearing to be the same, or to look like, the evidence found at the scene. People v. Beltran, 634 P.2d 1003 (Colo. App. 1981). Physical evidence is authenticated if evi- dence supports a finding the item is what its proponent claims. This can be satisfied by tes- timony the evidence is what it is claimed to be. People v. Grace, 55 P.3d 165 (Colo. App. 2001). The proponent of evidence must authenti- cate the evidence by establishing a chain of custody for it when it is not readily identifi- able and is susceptible to alteration by tam- pering or contamination. People v. Rodriguez, 2022 COA 11, 508 P.3d 276. The prosecution failed to lay a foundation sufficient to support a finding that exhibit con- tained what its proponent claimed when the evidence was not accounted for after the initial seizure. People v. Rodriguez, 2022 COA 11, 508 P.3d 276. If a reasonable jury could decide that physical evidence is what its proponent claims it to be, trial court should allow the evidence to be presented to the jury. Any ques- tion as to the authenticity of the evidence is properly decided by the jury. People v. Crespi, 155 P.3d 570 (Colo. App. 2006). Satisfaction of authentication or identifica- tion as condition precedent to admissibility satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Testimony of a witness with knowledge that a matter is what it is claimed to be conforms to the requirements of this rule. People v. Esch, 786 P.2d 462 (Colo. App. 1989); People v. Lesslie, 939 P.2d 443 (Colo. App. 1996). Investigating detective had sufficient per- sonal knowledge to authenticate cloud-based electronic files that were produced in response to a search warrant. However, prosecution must overcome hearsay objection for admission. People v. N.T.B., 2019 COA 150, 457 P.3d 126. Properly authenticated text messages are admissible as evidence. People v. Heisler, 2017 COA 58, 488 P.3d 176. Authentication of text messages has two components. First, a witness with personal knowledge must testify that printouts of text messages accurately reflect the content of the messages. Second, a witness with personal knowledge must provide testimony establishing the identity of the purported sender of the text messages. Identity may be established through a combination of at least two of the following: (1) the phone number was assigned to or associated with the purported sender; (2) the substance of the text messages was recognizable as being from the purported sender; (3) the purported sender responded to an exchange in such a way as to indicate circumstantially that he or she was in fact the author of the communication; or (4) any other corroborative evidence under the circumstances. People v. Heisler, 2017 COA 58, 488 P.3d 176. There are two separate showings to au- thenticate printouts of Facebook communi- cations to and from a defendant: (1) The re- cords were those of Facebook, and (2) the communications recorded therein were made by the defendant. The first showing is analogous to authenticating phone records or emails. The second showing to corroborate evidence of au- thorship is necessary because a profile may be fictitious or accessed by another person other than the profile owner. People v. Glover, 2015 COA 16, 363 P.3d 736. Based on testimony related to the defendant’s profile and the absence of evidence that anyone other than defendant ever used his account, the trial court did not abuse its discretion by permit- ting the jury to conclude that a Facebook ac- count belonged to defendant and he sent the messages contained in the printouts. People v. Glover, 2015 COA 16, 363 P.3d 736. Authentication was satisfied when prosecu- tion stated that it intended to use video anima- tion to show the types of injuries generated by shaking a baby and that, because prosecution’s expert would testify regarding the types of in- juries discussed in the video, such video would assist the jury. People v. Cauley, 32 P.3d 602 (Colo. App. 2001). Record of defendant’s conviction of forg- ery maintained by the Kansas bureau of in- vestigation was admissible as a public record under section (b)(7). People v. Deskins, 904 P.2d 1358 (Colo. App. 1995), aff’d in part and rev’d in part on other grounds, 927 P.2d 368 (Colo. 1996). Sheriff’s office booking reports containing certification and signature of custodian of records were admissible as public records under section (b)(7). People v. Warrick, 284 P.3d 139 (Colo. App. 2011). Although section (b)(9) may be used to authenticate computer records, there is no requirement that computer records be au- thenticated only in this way. People v. Huehn, 53 P.3d 733 (Colo. App. 2002). Administrative law judge (ALJ) did not abuse his discretion by admitting documen- tary evidence under section (b)(1). Based upon witness testimony, ALJ committed no abuse of discretion in admitting record of re- quest for purchase of political time and an agreement form for non-candidate issue adver- tisements as having been sufficiently authenti- cated under section (b)(1). As to admissibility of affidavit of performance used to indicate dates, airtimes, and the district in which the advertisements were broadcast, ALJ correctly held that political committee’s agent would not have authorized payment of invoices if he doubted advertisements aired during relevant time period and in relevant legislative district. There was no need to further authenticate affi- davit of performance because agent’s conduct manifested ‘‘belief in its truth’’ under C.R.E. 801(d)(2)(B). Collectively, these documents support ALJ’s findings that during relevant time period political committee arranged to broad- cast television advertisements opposing legisla- tive candidate to voters in candidate’s district. Colo. Citizens for Ethics in Gov’t v. Comm. for the Am. Dream, 187 P.3d 1207 (Colo. App. 2008). E-mails may be authenticated through tes- timony explaining that they are what they pur- port to be or through consideration of distinc- tive characteristics shown by an examination of their contents and substance in light of the cir- cumstances of the case. People v. Bernard, 2013 COA 79, 305 P.3d 433. Applied in People v. Fueston, 717 P.2d 978 (Colo. App. 1985), aff’d in part and rev’d in part on other grounds, 749 P.2d 952 (Colo. 1988); People v. Gilmore, 97 P.3d 123 (Colo. App. 2003).