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TCL > May 2002 Issue > Court Business

The Colorado Lawyer
May 2002
Vol. 31, No. 5 [Page  127]

© 2002 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

Colorado Supreme Court Rules of Evidence Committee

Proposed Amendments to Chapter 33, C.R.E.,

Rules 103(a), 404(a), 803(6), and 902

Proposed Amendments to C.R.E.,

ARTICLE VII, OPINIONS AND EXPERT TESTIMONY

Rules 701, 702, 703

Notice of Public Hearing, June 14, 2002

Written Comments Due May 31, 2002

 

The Colorado Supreme Court will conduct a public hearing on Proposed Amendments to Rule 103(a): Rulings on Evidence; Rule 404(a): Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes; Rule 803(6): Hearsay Exceptions; Availability of Declarant Immaterial; Rule 902: Self-Authentication; Rule 701: Opinion Testimony By Lay Witnesses; Rule 702: Testimony By Experts: Committee Comment on Amended Colorado Rule 702; and Rule 703: Bases Of Opinion Testimony By Experts.

The public hearing will be held on Friday, June 14, 2002, at 3:00 p.m. in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. An original and eight copies of written comments are to be submitted to: Mac V. Danford, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203-2115, by 5:00 p.m., May 31, 2002. Persons wishing to participate in the hearing should notify Mac Danford no later than May 31, 2002.

Note: Additions are underlined.

 

 

PROPOSED

Rule 103. Rulings On Evidence

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is Affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

 

PROPOSED

Rule 404. Character Evidence Not Admissible To Prove Conduct;

Exceptions; Other Crimes

 

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same or if evidence of the alleged victim’s character for aggressiveness or violence is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of Alleged Victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of Witness. Evidence of the character of a witness as provided in Rules 607, 608, and 13-90-101.

 

PROPOSED

Rule 803. Hearsay Exceptions; Availability

OF DECLARANT IMMATERIAL

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

 

PROPOSED

(two new subsections to Rule 902)

Rule 902. Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(11) Certified Domestic Records of Regularly Conducted Activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by an affidavit of its custodian or other qualified person, in a manner complying with any Colorado statute or rule prescribed by the Colorado Supreme Court, certifying that the record–

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and affidavit available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

(12) Certified Foreign Records of Regularly Conducted Activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record–

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

 

PROPOSED

Rule 701. Opinion Testimony by Lay Witnesses

 

If the witness is not testifying as an expert, the witness’ his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of his the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

 

PROPOSED

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

 

PROPOSED

Committee Comment on Amended Colorado Rule 702

Amended CRE 702 is identical to FRE 702 as the latter was amended in December 2000. This amendment to CRE 702 is not intended to change existing Colorado law as reflected in People v. Shreck, 22 P.3d 68 (Colo. 2001). Rather, the purpose of this amendment is to state expressly several requirements already found in Colorado law. The requirement of sufficient facts or data was implicit in the reliability criterion that was part of pre-amendment CRE 702, and also in CRE 703, stating that the facts or data must be "of a type reasonably relied upon" by experts in the field. The requirements of reliable principles and methods and reliable application of principles and methods were developed in Colorado cases over many years. See People v. Shreck, 22 P.3d 68 (Colo. 2001)(in determining admissibility of scientific evidence, courts should determine "reliability" of scientific principles, "qualifications" of the witness and "usefulness" of testimony); Brooks v. People, 975 P.2d 1105, 1113 (Colo. 1999) (to be admissible under FRE 702, specialized knowledge "remains subject to an inquiry regarding validity and reliability"); Schultz v. Wells, 13 P.3d 846, 850 (Colo.App. 2000) (courts determine "reliability and validity" of expert opinion under FRE 702).

Under Shreck, the trial judge applying CRE 702 must make specific preliminary findings. See CRE 104(a) (judge to determine preliminary questions concerning "the admissibility of evidence"). In performing this task, the trial judge should decide whether the principles and methods are reliable, whether the witness is qualified, and whether the proffered testimony is useful to the jury. The trial judge must also determine whether the probative value of the evidence is or is not substantially outweighed by the danger of unfair prejudice or confusion of issues under CRE 403.

 

PROPOSED

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

 

Colorado Division of Administrative Hearings

Chief Judge’s Directives

The Colorado Division of Administrative Hearings ("Division") is Colorado’s central panel of administrative law judges ("ALJs"). The Division provides administrative adjudication services to more than twenty-five different state agencies. The Division’s ALJs hear and decide cases involving workers’ compensation, professional and occupational licenses, public benefits and Medicaid, state government personnel disputes, education of disabled students, dismissal of tenured teachers, campaign finance laws, highway signs and highway access, lottery, bingo, raffles, and many other subject matters.

Chief Judge’s Directives ("CJDs") will be published on a space-available basis. See, e.g., 30 The Colorado Lawyer 53 (Aug. 2001). The Division’s CJDs also can be found online at: http://www. state.co.us/gov_dir/gss/DOAH/cjdindex.htm.

 

Chief Judge’s Directive

No. 15: Default Procedures Under the Administrative Procedure Act

 

(a) A person who receives notice of an agency adjudicatory hearing is required to file a written answer within 30 days after the service or mailing of notice of the proceeding. If a person receiving such notice fails to file an answer, an administrative law judge may enter a default against that person. Section 24-4-105(2)(b), C.R.S.

(b) An administrative law judge in the Division of Administrative Hearings will not consider a motion for entry of a default under this statutory provision unless the following requirements are met:

(i) The motion for entry of a default must be served upon all parties to the proceeding, including the person against whom a default is sought.

(ii) The motion shall be accompanied by an affidavit establishing that both the notice of the proceeding and the motion for entry of default have been personally served upon the person against whom a default is sought, or have been mailed by first class mail to the last address furnished to the agency by the person against whom the default is sought.

POSTED: March 5, 2002

© 2002 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2002.


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