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CHAPTER 13: THE RULES OF EVIDENCE - Table of Contents

13.1 - General Overview13.2 - Judicial Notice and Presumptions13.3 - Relevancy13.4 - Privileges13.5 - Witnesses13.6 - Opinions and Expert Testimony13.7 - Hearsay13.8 - Exhibits13.9 - The Use of Other Offenses and Acts13.10 - Selected Special Rules13.11 - Colorado Rules of Evidence

13.10 SELECTED SPECIAL RULES

The legislature and the Supreme Court have promulgated a variety of evidence rules that relate only to specific types of cases. This section addresses some of the more commonly encountered of these statutes and rules.

SEX OFFENSES

The most commonly used statute relating specifically to sexual misconduct is the 'rape shield statute.' At common law, a defendant charged with sexual misconduct could often attack the prior sexual conduct of the victim in an effort to show that she was a 'bad girl'. At the same time, inquiry into the defendant's prior behavior was quite limited.

The Colorado rape shield statute reverses this practice. The statute, CRS § 18-3-407 creates a presumption that the prior sexual behavior of the alleged victim is irrelevant and inadmissible. Exceptions exist for evidence of the prior sexual contact between the defendant and the alleged victim, or evidence of prior sexual behavior that show the source of any semen, disease or pregnancy to show that the sexual misconduct was not committed by the defendant. A party wishing to avoid the restrictions of the statute must file a motion in advance of trial so that the trial court can hold a hearing and resolve the issue. At the time of this writing, the Colorado legislature is considering some modifications to the rape shield statute to further protect the alleged victim.

DOMESTIC VIOLENCE

The Colorado Legislature has determined that some special evidentiary rules are needed in cases charging domestic violence. The legislature has found that, based on the cyclical nature of domestic violence, and the frequently escalating seriousness of the conduct, that evidence of other acts of domestic violence committed by the defendant should be more easily admissible than when the defendant is charged with other crimes.

Specifically, C.R.S. § 18-6-801.5 provides that evidence of other acts of domestic violence between the defendant and the alleged victim should be admissible upon a finding by the trial court that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice to the defendant, or by the danger of confusion or waste of time. A prosecutor wishing to take advantage of this statue must give notice, by an offer of proof, of the nature of the evidence and the specific purpose for which it is being offered.

CHILDREN

Recognizing that a trial setting can be very stressful and even harmful to a child-witness, the legislature has set forth several rules designed to make it easier to convey to the jury the information that is in the possession of a child.

The legislature has modified the general rule of competency of witnesses. That rule, discussed in Section 13.5, creates a presumption that a child under the age of ten is not competent to be a witness. However, C.R.S. § 13-90-106 modifies this rule when the criminal charge or civil claim is one of sexual assault on a child, incest or child abuse. In those cases, a child under ten is permitted to testify as long as "the child is able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined."

Another statute relaxes the hearsay rule as it might otherwise relate to a child witness in cases involving child abuse, sexual assault on a child, or child neglect. Statements of a child which are not admissible under any of the exceptions to the hearsay rule are nonetheless admissible if the trial court finds "that the time, content and circumstances of the statement provide sufficient safeguards of reliability," and the child either testifies or is found to be unavailable as a witness. This statute is subject to the limits created by the constitutional right to confront witnesses discussed above.

Finally, the legislature has provided that the prosecution may, in order to spare a child the trauma of testifying in front of a jury in a courtroom, ask that a videotaped deposition of the child be substituted for live testimony at trial. A trial court should consider whether the child is likely to be medically or otherwise unavailable to testify at trial. If so, the trial court may order that a deposition be videotaped. If the child is, in fact, still unavailable at the time of trial, the trial court may order that the videotape be played as a substitute for the live testimony of the child.

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