Bar Media Manual

Bar Media Manual


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


Relevant evidence is defined in CRE 401 as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the matter at issue more probable or less probable. CRE 402 establishes that all relevant evidence is admissible.

Rarely do relevancy issues arise with regard to direct evidence, evidence that directly goes to the issues. In a bank robbery case, the testimony of the bank teller describing the robber is direct evidence of the crime and is always relevant. Relevancy issues do arise with regard to circumstantial evidence, that is evidence of a fact from which some other fact of possible importance can be inferred. The fact that the defendant in the bank robbery owns a certain model and color car may or may not be relevant depending on how precisely the car involved in the robbery can be described by the witnesses.

This definition of relevancy uses very broad language: "any tendency" and "more probable or less probable." Arguments could be made that a vast array of facts might make some other fact 'more or less probable.' In order to give the trial court some authority to control the flow of evidence, CRE 403 provides that even relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

The trial court must engage in the difficult job of weighing the probative value of the evidence against the unfair prejudice or confusion or delay. Obviously, reasonable minds can differ about this balancing process, so appellate courts give deference to trial courts making these decisions.

In some specific areas, the CRE or the C.R.S. take admissibility determinations out of the hands of the trial judge. Some common examples follow. Evidence that a person had insurance is generally not admissible; we want to encourage people to get insurance, so we do not let that fact be used against the person even though it might be relevant. The same general rationale is applied to evidence of offers to compromise or settle or a plea in a case, or to pay medical or other expenses; even though these facts may be relevant, we exclude them because we want to encourage people to engage in settlement negotiations, an pay medical bills, etc. Evidence that a witness has a felony conviction is generally admissible; even though a jury might be prejudiced by that fact, we have decided that a felony conviction is important enough to the jury's determination of whether or not to believe a witness that we let the jury hear that fact.

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